In 2003, the Colorado legislature passed a statute providing that parents have the authority to contract, on behalf of their child, to relieve a provider from liability for its negligence in the event the child is injured during participation (C.R.S. 13-27-107 (2003). Among other things the statute provides
(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 [emphasis added]
(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.
This statute was first applied in Wycoff v. Grace Community Church of the Assemblies of God (2010) in a case in which a 17 year-old was injured while snowtubing with the tube tied to an ATV. The parent had previously signed the following waiver:
I give permission for my child to participate in [Grace’s] Winterama 2005 and all activities associated with it. I further give consent for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.
The waiver was not enforced by the appellate court because the waiver did not sufficiently inform the parent of the risks – hence, the parent was unable to make an informed decision (see the highlighted section in the statute).
In a subsequent case (Hamill v. Cheley Colorado Camps, Inc., 2011), a 15 year-old broke her arm when she fell while participating in a horseback ride. Plaintiff alleged negligence and gross negligence – arguing that the horse was not properly saddled. The primary issue in the case again revolved around whether the parent had made an informed decision. The court relied on Wycoff’s statement that “A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.”
The waiver differed significantly from the Wycoff waiver.
Release, Waiver of Liability and Indemnification
I, on behalf of myself and my child, hereby release and waive any claim of liability against Cheley . . . with respect to any injury . . . occurring to my child while he/she participates in any and all camp programs and activities.
I hereby agree to indemnify and hold harmless Cheley . . . with respect to any claim asserted by or on behalf of my child as a result of injury . . . .
I HAVE READ AND UNDERSTAND THE ABOVE AND AGREE TO BE BOUND BY THE TERMS OF THIS DOCUMENT.
Another section of the agreement, labeled “Acknowledgment & Assumption of Risks and Waiver of Claims for Minors,” states:
PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS.
Acknowledgment of Risks
I understand there are numerous risks associated with participation in any camping activities, including . . . horseback riding . . . . Many, but not all of these risks are inherent in these and other activities. . . .
Equipment used in the activity may break, fail or malfunction, despite reasonable maintenance and use. Some of the equipment used in activities may inflict injuries even when used as intended. Persons using equipment may lose control of such equipment and cause injury to themselves and to others. . . .
Counselors and guides use their best judgment in determining how to react to circumstances including . . . animal character . . . . The counselors and guides may misjudge such circumstances, an individual’s capabilities and the like.
. . . .
These are some, but not all, of the risks inherent in camping activities; a complete listing of inherent and other risks is not possible. There are also risks which cannot be anticipated. [italics added]
I give my permission for my child to participate in all camp activities, including those described above. I acknowledge and assume the risks involved in these activities, and for any damages, illness, injury or death . . . resulting from such risks for myself and my child.
The reader should examine the extent of the information provided the signer in the italicized section. In addition, the court found that phrases such as “any claims of liability,” “any injury,” and “death” indicated the mother should have understood the extent of the risk. In addition, the mother admitted that she was a friend of Christopher Reeve – which should have alerted her to the risk.
In light of the waiver language regarding risk, the court concluded that the mother made an informed decision. The court enforced the waiver.
In a 2013 case (Squires v. Breckenridge Outdoor Education Center), a legally blind child with cerebral palsy was injured while skiing. Squires was in Breckenridge on a ski trip with Camp Fire USA, a non-profit organization dedicated to providing children (including those with disabilities) with experiences and opportunities for growth. Parents were provided two documents, a letter describing the trip and a liability waiver, prior to the trip.
As in the first two cases, one of the main factors by which the waiver was evaluated was whether Mrs. Squires’ consent had been an informed decision as required by the Colorado statute. The waiver, with information regarding the risk involved in the program, is provided here:
ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)
In consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:
1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.
2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.
I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity. [Italics added]
The court stated that both the letter and the waiver warned of risks involved in the trip; the waiver contained broad language (“any and all claims,” “of every nature,” and “whether resulting from negligence or otherwise”); the waiver warned of the possibility of “injury, permanent disability, fatality”; and cited Hamill saying the release “did not need to include an exhaustive list of particularized injury scenarios.” Hence, the court concluded that the waiver satisfies the requirement of informed consent.
When a statute is passed by a legislature, its ultimate effect is never certain until it is tested in the courts. In the case of C.R.S. 13-27-107 (2003), it seems that parental waivers allowing children to participate are enforceable provided the waiver sufficiently warns the parent of the risk involved in the activity to such an extent that the parent can make an informed decision.
Photo Credit: Thanks to Squaw Valley at Flicker.