Title: re: Waivers for minors
This morning I heard a report on NPR's Morning Edition on a recent
Colorado
court decision that basically invalidated the minor release that all
parents
sign when their kids participate in extreme/dangerous sports.
This case was
about a teenage boy training on a ski racing course who smacked a tree
adn
ended up blind. Though his parents had signed a minor release
form waiving
sueing, they sued anyway, claiming negligence on the part of those who
set
up the course.
According to the ruling (indicating that minor waivers do not
rule out suit
for negligence), if a minor was injured at a ride, even thought a
waiver had
been signed, the parents could sue and try to prove the injury did
not
result from the inherant dangers in endurance riding, but rather
from
negligence on the part of the ride in setting up the trail. If
this was
proven, the ride would lose. In the court case I mentioned at
the
beginning, the judge is now trying to determine if the injury to the
boy was
a result from the inherant dangers of ski racing or negligence on the
part
of the ski club and/or coach.
-Tamara
Dear Tamara:
This is not any change of law or an unusual ruling. Courts
have consistently held that parents are not able to release a child's
right to sue if the child is injured. The parents' signature on
a release does release their rights to sue for any expenses (medical
and funeral) and the loss of services (similar to between a husband
and wife).
Kat suggested using an indemnity agreement for the parents to
sign. From a legal prospective, it will probably be ruled to be
unenforceable. There is a recent case from Utah, Hawkins v. Peart, 37 P.3d 1062, that
dealt with both of these issues in a case involving a girl who was
injured on a trail ride. It is probable that most courts would
deal with both issues in the same fashion.
THE ABOVE SHOULD NOT BE VIEWED AS MEANING I
AM AGAINST RELEASES FOR CHILDREN (shouting is intentional).
Releases can be very effective for children, though not in the same
way that they are legally for parents. A well written release
will clearly describe the dangers involved in the sport. For
recreational accidents, the best defense with children is that they
knowingly accepted the risks associated with the sport. If your
release warns children clearly of the risks, you will be able to use a
defense of assumption of risk when a child is injured.
This type of release (combined with an
indemnity agreement) can be very effective at reducing your risks by
making sure that parents and children clearly know what can happen.
I've had clients comment that some parents have left their stables
after seeing the release I drew for them. Best way to avoid a
lawsuit is to make sure you don't do business with people likely to
sue you.
I haven't had one of my releases ever go to
court. The two serious accidents that my clients have had
customers suffer never got anywhere. In both cases, the release
was part of the reason why the case never went anywhere.
I have a book entitled Equine
Liability coming out in November/December. I go into this
issue in a lot more detail.
Jim Clark-Dawe
Attorney at Law
Webster, NH
