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Duration of Waivers: A 3 Part Series — Part 1

Part 1

By Doyice Cotten

312217478_d6809aa6dc_z-1Tariq Davis, a minor, was injured when he ran into the street and was struck by an auto while chasing a soccer ball (Davis v. American Youth Soccer Organization, Virgin Islands, 2016). The American Youth Soccer Organization (AYSO) claimed protection from a waiver signed by a parent on behalf of the youth.

Courts in the Virgin Islands have stated that “an exculpatory clause which limits or absolves a party for its own ordinary negligence is generally enforceable, but the language used must be ‘broad and unambiguous’ or ‘clear and unequivocal.’”

Davis had registered for soccer and signed waivers on two previous years; however, AYSO could produce neither a registration nor a waiver for the year of the injury. They did produce a waiver for a prior year. AYSO stated that registration was on an annual basis. In the absence of an indisputably applicable agreement, the Court cannot review the pertinent exculpatory language to determine if it is clear, unambiguous, and unequivocal. In failing to produce a waiver, AYSO failed to satisfy their primary obligation of showing an absence of a genuine issue of material fact.

 AYSO argued that there was a registration record for Davis on their computer; further, they claimed participants did not have to register every year – so the earlier registration and waiver were still in effect. The court, however, felt that there was an ambiguity regarding registration requirements:

1) each executed registration form was of a one-year duration;

2) an executed registration form continued in effect for as long as the named player participated in the AYSO program; or

3) an executed registration form was effective for the named player until a new registration form was developed and implemented.

Consequently, the court stated that “Where there is a genuine issue about the duration of an agreement, and the temporal term is material, as it is here, summary judgment is inappropriate.

Risk Management Take-Aways

  1. Make certain that your waiver specifies a duration. In some cases, it might be for the “event.” In other cases, it might appropriate for the duration to be for a season. In yet other cases, it might be of unlimited duration (e.g., forever, on all subsequent dates).
  2. In a case such as this one, everyone should have to register each year (or specify that the waiver is for “now and all subsequent dates”).
  3. A foolproof record keeping system should be employed with backups of all records stored in another location.

 Photo Credit: Thanks to Jarrett Campbell at Flickr.

 

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