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Waiver Protects Program for Youth with Disabilities for Liability for Negligence

By Doyice Cotten

3506933457_61103bf3e9_zRobert Rogers, an autistic child, participated in a program for youth with disabilities offered by Ability First. Robert’s grandmother (with authority from the mother) approved his participation in local neighborhood excursions and signed a waiver of liability releasing Ability from liability.

On the day of the incident, Ability took Robert on a “walking field trip” to a nearby Target store.

While walking back to Ability’s facility, Robert broke into a foot race with other Ability attendees to reach a gate in a chain link fence at an entrance to Ability’s grounds. Just as Robert reached the gate, it suddenly swung outward and hit him in the face, causing him to lose a piece of a front tooth. The gate swung outward when another Ability participant, who was running in basketball drills on Ability’s grounds on the inside the chain link fence, ran into the gate, pushing it outwards toward Robert, who was on the outside of the chain link fence.

Subseqently, a lawsuit was filed; two of the claims alleged negligence on the part of Ability for failing to supervise and premises liability for the failure to provide a safe environment. (Rogers v. Ability First, 2016 Cal. App. Unpub. LEXIS 4408)

Ability claimed protection against both claims on the basis of the waiver signed by the grandmother.

I understand that the mode of transportation will be walking and hereby represent that my child is fully capable of participating [*3]  in such trips and that I have informed [Ability] of any relevant health or behavioral concerns evidenced by my child of which I am aware.

I hereby release, discharge, agree not to sue and waive any and all causes of action against [Ability] . . . from any and all liability or expense . . . for any and all injury or damage that may arise during, or develop in the future, as a result of my child’s participation in the trips described above, whether caused by the negligence of [Ability] or otherwise.

The court ruled that the waiver clearly and unambiguously released the defendant from liability for negligence.  It cited California case law stating

  1. It is well-established in California that an agreement which does not contravene the public interest may release a party from liability arising from the party’s negligent acts.
  2. To be effective, such a release “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.”
  3. A parent or guardian’s clear, unambiguous and explicit agreement to release a caretaker from liability for a student’s injuries resulting from negligence is valid and enforceable under these principles.
  4. As stated in Hohe: “The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation.”
  5. Not every possible specific act of negligence by the defendant must be spelled out in the agreement or discussed by the parties. Where a release of all liability for any act of negligence is given, the release applies to any such negligent act, whatever it may have been.” It is only necessary that the act of negligence which resulted in the injury to the releaser be reason-ably related to the object or purpose for which the release was given.

Ability was granted summary judgment on the negligence claim. However, the court ruled that there was nothing in the waiver providing protection against premises liability. This proved to be unimportant because the plaintiff provided no evidence to prove that the owner had actual or constructive knowledge of a dangerous condition.

Photo Credit: Than ks to Erik Soderstrom on Flickr

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