Statutes and prospective language to allow a parent to sign away a minor’s right to sue.

Now is the time to move a statute like this forward in your state.

Three states allow a parent to sign away a child’s right to sue by statute: Alaska, Florida and Colorado. Five (maybe 6) states allow a parent to sign away a minor’s right to sue by Supreme Court Decision. See States that allow a parent to sign away a minor’s right to sue. With more legislatures leaning to the conservative side, now is the time to introduce and get a law like these passed in your state. To assist you, at the end I have included language that I would propose for the statute.

Colorado

C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.
(2) As used in this section, unless the context otherwise requires:
(a) “Child” means a person under eighteen years of age.
(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

Florida Statute on Guardian right to sign away a minor’s right to sue.

Fla. Stat. § 744.301 (2010)
§ 744.301. Natural guardians
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:

Alaska

Alaska Stat. § 09.65.292 (2011)
Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
(c) In this section,
(1) “child” means a minor who is not emancipated;
(2) “parent” means
(A) the child’s natural or adoptive parent;
(B) the child’s guardian or other person appointed by the court to act on behalf of the child;
(C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;
(D) a person who has a valid power of attorney concerning the child; or
(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;
(3) “provider” has the meaning given in AS 09.65.290;
(4) “sports or recreational activity” has the meaning given in AS 09.65.290.

My suggestion on how the law should read.

Legislative declaration – definitions – minor children – waiver by parent or guardian of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in _____________ (state) need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a legal and fundamental right and responsibility to make decisions concerning the care, custody, and control of their minor children. The law has long presumed that parents act in the best interest of their children. Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458; 2000 Cal. Daily Op. Service 4345; 2000 Daily Journal DAR 5831; 2000 Colo. J. C.A.R. 3199; 13 Fla. L. Weekly Fed. S 365 (Troxel is a US Supreme Court decision that allows a parent to sign away a child’s right to sue. See Courtney Love in Outdoor Recreation Law.)
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(a) “Child” means a person under eighteen years of age at the time of incident, loss, injury or accident.
(b) For purposes of this section only, “parent” means a parent, a person who has guardianship of the person, a person who has legal custody, a legal representative, a physical custodian or a responsible person, in temporary custody and control of the minor Child.
(3) A Parent of a Child may, on behalf of the Child, release and waive, in advance, any claim or cause of action against a private, commercial, governmental or non-profit, activity provider, business, program or activity, or its owners, affiliates, employees, volunteers or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from the risk or an inherent risk in the activity or the Child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

To work you will need to round up everyone who deals with kids. Little League and other youth sports groups, day care centers, youth programs like Scouts, commercial programs like camps, day camps and anyone serving youth as well as major organizations that may be in your state like NOLS and Outward Bound.

Your statutory language may vary based on current state laws and court interpretations, but go for it.  You can only lose time and get a civics lesson.

This won’t save you money on your insurance that never happens. However, it may help keep your insurance from going up and keep you out of court.

What do you think? Leave a comment.

 
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com

Keywords: #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #minor, #parent, #waiver, #release,
Technorati Tags: ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Windows Live Tags: Statutes,statute,Three,Alaska,Florida,Colorado,Five,Supreme,Court,Decision,States,legislatures,Legislative,declaration,definitions,waiver,negligence,policy,Children,Public,entities,protection,lawsuits,Parents,decisions,custody,participation,treatment,education,youth,Colo,context,Child,person,purposes,guardianship,custodian,omission,Guardian,Stat,Natural,guardians,addition,subsection,action,provider,owners,employees,agents,injury,death,dangers,manner,failure,participant,statement,text,Parental,Except,extent,misconduct,Department,Health,Social,Services,attorney,grandparent,brother,suggestion,_____________,Troxel,Granville,LEXIS,Service,Journal,Courtney,Love,Outdoor,Recreation,incident,accident,Parent,Little,League,Scouts,NOLS,Outward,Bound,laws,interpretations,lesson,money,insurance,Leave,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Adventure,Travel,Blog,Keywords,Moss,James,tourism,management,Human,areas,hereby,behalf,adoptive
WordPress Tags: Statutes,statute,Three,Alaska,Florida,Colorado,Five,Supreme,Court,Decision,States,legislatures,Legislative,declaration,definitions,waiver,negligence,policy,Children,Public,entities,protection,lawsuits,Parents,decisions,custody,participation,treatment,education,youth,Colo,context,Child,person,purposes,guardianship,custodian,omission,Guardian,Stat,Natural,guardians,addition,subsection,action,provider,owners,employees,agents,injury,death,dangers,manner,failure,participant,statement,text,Parental,Except,extent,misconduct,Department,Health,Social,Services,attorney,grandparent,brother,suggestion,_____________,Troxel,Granville,LEXIS,Service,Journal,Courtney,Love,Outdoor,Recreation,incident,accident,Parent,Little,League,Scouts,NOLS,Outward,Bound,laws,interpretations,lesson,money,insurance,Leave,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Adventure,Travel,Blog,Keywords,Moss,James,tourism,management,Human,areas,hereby,behalf,adoptive
Enhanced by Zemanta

Wrong release for the activity almost sinks YMCA

A release must apply to the activity and the person who you want to make sure cannot sue you.

McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018

English: YMCA logo (international and USA)

Image via Wikipedia

 

In this case, a mother signed her son up to attend a day camp sponsored by the YMCA. While attending the day camp, the child was accidentally hit in the head by another child with a baseball bat. The mother sued for the child’s injuries.

The YMCA argued that the mother had signed a release, and therefore, the YMCA should be dismissed. The mother argued that the release only applied to her, not her child because the release was unclear as to who was being released in the document. (The mother argued the release was required for her to walk around the YMCA to sign her son up for the camp.)

In this case, the YMCA used its general release for people on the premises of the YMCA as a fitness facility, for its day camp. The release did not indicate a parent would be signing for the child nor did the release look to the issues the child would encounter, only an adult using the YMCA or any other gym.

The mother argued because the release did not identify her son, the injured party, as who the release applied to the release only applied to her while she was on the premises. Nothing in the document indicated that the mother was signing a release on behalf of her son.

Like most releases used in gyms and fitness centers it is written for the adult signing up to use the gym.
Under the law, “An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties.”

What saved the YMCA was a technicality in the language of the release. To go to the day camp, the child attending must be a member of the YMCA. The mother of the injured child was not a member of the YMCA. However, her son was. Because the release referred to the YMCA member as the person giving up their right to sue, the court held the release applied to the child not the mother. This language allowed the court to find for the YMCA.

So?

Releases are not documents you can merely find on the internet or put together based on language that sounds good. Think about the contract you used to purchase your house. It was a 10 to 20 page document used to buy something of value greater than $100,000 or so.

If someone is suing you for several million dollars do you want to rely on a document that you put together or worse stole from the business down the street.

Here again you have to make sure your release is properly written. You may have several different releases for different parties or activities. I commonly suggest that people use different paper to print the different release forms. Here the YMCA should have had a general release for use of its fitness and other facilities and a release for its day camp. One could have been printed on white paper and the other on green. Even better, put the release online and save paper.

Your release must identify who is protected by the release and who the release is going to stop from suing. In many cases, one parent will sign on behalf of a child. However, in some states, unless the language is clear, that parent may not be preventing the other parent from suing. Identify every person who can sue in the release as well as every person who cannot be sued. When in doubt, have both parents sign the release.

For information on other states where a parent can sign away a minor’s right to sue see: States that allow a parent to sign away a minor’s right to sue–Updated 2011
 

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: http://www.recreation-law.com

Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #YMCA, #day camp #camp, #release, #minor,
Technorati Tags: ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Windows Live Tags: Wrong,YMCA,person,McGowan,West,Unpub,LEXIS,injuries,premises,gyms,Under,agreement,negligence,member,Releases,Think,million,dollars,street,Here,paper,facilities,Identify,parents,information,States,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,behalf
WordPress Tags: Wrong,YMCA,person,McGowan,West,Unpub,LEXIS,injuries,premises,gyms,Under,agreement,negligence,member,Releases,Think,million,dollars,street,Here,paper,facilities,Identify,parents,information,States,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,behalf
Enhanced by Zemanta

Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832

The case is a little confusing to read because there was another case that was appealed by the same parties whom this case refers to. Additionally, the act of the trial court in reducing the damages is confusing. However, this case is a very clear example of how a badly written release is going to cost the church and its insurance company millions.

A church group had taken kids to a camp for a “Winterama 2005.” The church had rented the camp for the weekend. The plaintiff was 17 and not a member of the church. Her parents had paid a reduced fee for her to attend the activity. As part of that registration her mother signed a “Registration and information” form. One of the activities was pulling them behind an ATV on an inner tube on a frozen lake.

There was a large boulder embedded in the lake. On the second loop, the plaintiff’s inner tube hit the boulder breaking her back.

The plaintiff’s mother had signed the “Registration and Information” form. On the form was the following sentence.

I will not hold Grace Community Church or its participants responsible for any liability, which may result from participation.

The case went to trial, and the jury returned a $4M verdict in favor of the plaintiff. The defendant and plaintiff appealed after the judge reduced the damages to the limits of the insurance policy of the church, $2M plus interest.

The appellate court first looked at Colorado case law on releases and the legislative history of § 13-22-107(3), C.R.S. 2010. That statute, C.R.S. § 13-22-107(3), was enacted to allow a parent to sign away a minor’s right to sue. The statute, and the decision in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), has a requirement that the parental decision must be “informed” and with the intent to release the [defendant] from liability. Jones v. Dressel was the first Supreme Court review of releases in the state of Colorado as they applied to recreational activities.

The court looked at the language in the “Registration and Information” form to see if it informed the parents of the activities and risks their child would be undertaking. The court looked at the language and found:

There is no information in Grace’s one-page registration form describing the event activities, nothing describing the associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.

The court also looked at prior decisions concerning releases and found that “in every Colorado Supreme Court case upholding an exculpatory clause. The clause contained some reference to waiving personal injury claims based on the activity being engaged in.”

The court concluded that:

Grace’s [the defendant’s] form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
… nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.

The court then looked at the second major issue that has been surfacing in many outdoor recreation cases of late. The plaintiff sued claiming a violation of the duties owed by the landowner, a premises liability claim. That means that the landowner owed a duty to the plaintiff to warn or eliminate dangers, which the landowner failed to do.

The defendant argued that it was not the landowner; it had just leased the land for the weekend. However, the court found this argument lacking. The premise’s liability statute § 13-21-115(1), C.R.S. 2010, defines landowner to include someone leasing the property.

This places two very important burdens on anyone leasing land or using land.

  1. They must know and identify the risks of the land before bringing their clients/guests/members on the land.
  2. The release must include premise liability language.

The second one is relatively easy to do; however, the effectiveness is going to be difficult. The first places a tremendous burden on anyone going to a camp, park or other place they do not own for the day, weekend or week.

  • Your insurance policy must provide coverage for this type of claim.
  • You need to inspect the land in advance, do a due diligence to make sure you know of any risks or dangers on the land.
  • You must inform your guests/members/clients of those risks.

The final issue that might be of some importance to readers is the court reviewed the legal concept of charitable immunity. At one time, charities could not be sued because they “did good” for mankind. That has evolved over time so that in most states charitable immunity no longer exists. At present, and with this court decision, the assets of the charity held may not be levied by a judgment. What that means is after someone receives a judgment against a charity, the plaintiff with the judgment then attempts to collect against the assets of the charity. Some of the assets may not be recovered by the judgment creditor because they are part of the charitable trust.

What does that mean? If you are a charity, buy insurance.

Of note in this case is the plaintiffs are the injured girl and her insurance company: The opinion states “Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer).” Although set forth in the decision, her insurance company is probably suing under its right in the subrogation clause. A subrogation clause in an insurance policy says your insurance policy has the right to sue under your name or its own name against anyone who caused your damages that the insurance company reimbursed.

So?

As I have said numerous times, your release must be written by an attorney that understands two things.

  1. Release law
  2. The activities you are going to engage in.
  3. The risks those activities present to your guests/members/clients.
  4. Any statutes that affect your activity and/or your guests/members/clients.

Any release should include a good review of the risks of the activities and a description of the activities so adults and parents can read and understand those risks. Any minor who can read and understand the risks should also sign the release as proof the child assumed the risk. Assumption of the risk works to win cases against minors when the release is thrown out or in those cases where a release cannot be used against a minor.

Find a good attorney that knows and understands your activities, those risks and the laws needed to write a release to protect you.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Colorado, # American Medical Security Life Insurance Company, # Grace Community Church, #minor, #release, #negligence,
Technorati Tags: ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Windows Live Tags: Registration,information,Colorado,Releases,attorney,guests,clientele,Wycoff,Grace,Church,Assemblies,Colo,LEXIS,example,cost,insurance,millions,Winterama,plaintiff,member,parents,tube,boulder,participants,participation,jury,verdict,defendant,policy,history,statute,decision,Jones,Dressel,requirement,Supreme,Court,event,decisions,clause,reference,injury,paragraph,permission,treatment,fourth,degree,extent,injuries,recreation,violation,duties,landowner,premises,dangers,argument,premise,clients,park,coverage,diligence,importance,readers,concept,charities,assets,judgment,Some,plaintiffs,girl,opinion,insurer,American,Medical,Life,Company,Although,Release,statutes,description,adults,Assumption,minors,Find,laws,Leave,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,tourism,management,Human,youth,areas,negligence,subrogation
WordPress Tags: Registration,information,Colorado,Releases,attorney,guests,clientele,Wycoff,Grace,Church,Assemblies,Colo,LEXIS,example,cost,insurance,millions,Winterama,plaintiff,member,parents,tube,boulder,participants,participation,jury,verdict,defendant,policy,history,statute,decision,Jones,Dressel,requirement,Supreme,Court,event,decisions,clause,reference,injury,paragraph,permission,treatment,fourth,degree,extent,injuries,recreation,violation,duties,landowner,premises,dangers,argument,premise,clients,park,coverage,diligence,importance,readers,concept,charities,assets,judgment,Some,plaintiffs,girl,opinion,insurer,American,Medical,Life,Company,Although,Release,statutes,description,adults,Assumption,minors,Find,laws,Leave,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,tourism,management,Human,youth,areas,negligence,subrogation
Enhanced by Zemanta

Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

Case was a baseball camp where the minor was injured during horseplay. 

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299 

This is a pretty simple case. The defendants operated a baseball camp on the campus of the University of Minnesota. The plaintiff’s mother had signed her son up for the camp, online or electronically. On the last day after lunch a group of students went to the courtyard. The plaintiff sustained a permanent eye injury when they started throwing woodchips from the courtyard at each other.

The father sued on behalf of his son. The trial court, a district court in the opinion, granted the defendant’s motion for summary judgment. The father on his and his son behalf appealed.

The plaintiff first argued that the release, or assumption of the risk agreement as it was termed in the decision, should be “thrown out” because it could not be produced. Because the mother had signed online there was no signed document. On top of that, the system used by the defendant did not produce any document indicating who had signed what documents.

However, the defendant was able to show that the mother had signed other documents just like the release. A roster of those kids that had attended the camp that summer, with the injured minor’s name on it was produced. The camp through a director, also testified that if the mother had not signed the release, the minor would not have been allowed to attend the camp.

The mother’s deposition was also introduced. She could not deny filing out the forms online even though she did not remember the forms.

The plaintiff’s then argued that the language of the release did not cover the injury the minor sustained. The language only spoke to baseball and as such the release only covered injuries that the minor could have received playing baseball. Horsing around during free time therefore, was not covered by the release. The plaintiff also argued the language that excluded the claims; the release sentence was separate from the sentence that identified the risks. As such the release should be very narrowly construed.

Neither argument was accepted by the court. The court found that the release covered more than just baseball, and the release had to be read as a whole so the risk was incorporated into the exculpatory sentence.

The plaintiff then argued the exculpatory clause violated public policy. The court dismissed this argument. The court found that the baseball camp was not educational in nature. The training could be found through other sources and playing baseball was not essential or of great importance to members of the public.

So?
 
The rules of evidence have a procedure for admitting into trial documents that have been lost. The rule is based on procedure. The procedure to be allowed to go to a baseball camp required a parent to sign many documents. The child would not have been allowed at amp without signing all of the documents. A procedure was set up to show the mother had to have signed the release because her son was at the camp.
You should create a procedure for your business, camp or program. The best one I’ve seen for whitewater rafting was created by Mountain Waters Rafting. Guests were given their PFD’s (life jackets) when they handed in their releases. If a guest had on a PFD, the guest had signed a release.

The more you can identify a procedure that you used the same way every time, the easier to introduce a lost piece of paper.

Electronically, there can be several ways to make sure you can prove a person read and signed the release online. I first suggest you always tie a release into a credit card. The credit card company knows more about the holder of a credit card then you ever will. If the credit is accepted to pay for something on line, and the name on the release matches the name on the credit card you can prove the release was signed. If the trip or camp was paid for a release was signed.

You should also have a system that you are notified that each person has signed the documents. Create a way to download the information, name, address, etc. date and exact time the release was signed to your business computer and do so regularly. That information can be matched up, name, date and time to the credit card and payment used. Match this with your receipt of payment from the credit card company and you should have proof.

Make sure your release is written to cover all the risks of your program, business or activity. Here the language was broad enough the baseball program was covered for horseplay. How often do you feed guests, transport guests, and have guests just walking around that could be a chance to be injured. Your release needs to stop litigation, all types of litigation, not just what you face what you are selling to the public.

What do you think? Leave a comment.

 
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: http://www.recreation-law.com

Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Minnesota, #baseball, #camp, #minor, #electronic signature, # Minnesota Baseball Instructional School,
Enhanced by Zemanta

Adult volunteer responsibility ends when the minor is delivered back to his parents.

Thank heavens!

Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90

A youth was on a trip with a Scout troop which is a program of the Boy Scouts of America (BSA). Sometime on the trip, the minor bought a slingshot. The slingshot was confiscated by a volunteer leader on the trip. At the end of the trip, the slingshot was given to the parents of the minor.

Later the minor was playing with the slingshot with another youth, and the other youth was injured by the slingshot. Either the minor had gotten the slingshot somehow or the parents had given the slingshot back to the minor, although this was not specifically stated in the opinion.

The parents of the minor injured by the slingshot, the plaintiffs, sued the volunteer adult leaders of the trip for the minor’s injuries.

The court in a succinct and short decision held the adult volunteers were not liable for the minor’s injuries. The basis for the decision was the action of the volunteer in giving the minor back to the parents was a superseding intervening act, which stops the claim.

A superseding act, eliminates the relationship between the damages which caused the injury and the duty owed. That means negligence cannot be proven. The damages are not proximate to the duty owed. Negligence has four parts, all which must be proven:

  • A duty
  • Breach of the duty
  • Injury
  • Damages proximately caused by the breach of duty.

The court’s decision says the fourth step cannot be proven because of the superseding act. The parents taking control of their child was an intervening act which the court said did not tie the duty and the damages to together legally. Stated another way, there was no relationship between the act of the volunteer and the injury received by the minor.

The plaintiffs seem to argue that the adult volunteer should not have given the slingshot back to the parents. However, the slingshot was a possession, a piece of property owned by the minor and as such, his parents. The slingshot was given back to the owners as required by the law.

So?

The relationship between a parent and a volunteer who is spending his or her time with the child is tenuous. As a volunteer you must be clear what your responsibilities are and are not going to be, as well as when that responsibility ends. It does not need to be so formal. It can simply be in the trip information that the kids have to be at the church by 7:00 PM and parents must pick their kids up Sunday at 2:00 PM at the church.

Most times, volunteers worry about injuries to the minor as a liability issue. There are other issues that can come up that you should be prepared to deal with.

Search and Rescue costs if a minor is lost can be substantial. (See No Charge for Rescue). Damages to property or injury to other minors can create liability for the adult volunteer responsible. A forest fire started by a minor can be costly. Even though most state courts will not allow a parent to release the claims of a minor for injuries, courts will allow releases or contracts where the parent agrees to pay for other claims the minor may create.

You can inform the parent and make sure they understand (meaning a written document) that they are responsible for any damages the minor may create for a reason other than injuries to themselves. I would include damages for the minor’s injuries on a different form. You do not want the court to throughout one release for the minor’s injuries when what you needed was protection for the damages done for the minors.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

#recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #BSA, #Boy Scouts of America, #youth, #No Charge for Rescue, #volunteer, #youth leader, #youth, #minor, Technorati Tags: ,,,,,,,,,,,,,,,,,
Windows Live Tags:
Adult,parents,recreation,adventure,Moss,James,attorney,tourism,management,youth,areas,negligence,Scouts,America,Charge,Rescue,leader,blog
WordPress Tags:
Adult,parents,recreation,adventure,Moss,James,attorney,tourism,management,youth,areas,negligence,Scouts,America,Charge,Rescue,leader,blog
Blogger Labels:
Adult,parents,recreation,adventure,Moss,James,attorney,tourism,management,youth,areas,negligence,Scouts,America,Charge,Rescue,leader,blog