By Doyice Cotten
Jahndee Hong and her husband joined an athletic club and signed a liability waiver. In addition to the names of her and her husband, the membership listed the names of all three of their children. Subsequently, she left her child playing on the indoor playground equipment at the club. He fell from a piece of equipment and broke his arm.
She filed suit alleging negligence by the club.( Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340) The club contended that the waiver, which referred to “all acts of active or passive negligence,” barred the suit. Delaware law provides that waivers are enforceable provided the language is crystal clear and unequivocal – necessitating the reference to negligence of the protected party. The court found that the waiver applied to “any injury … incurred while engaging in any physical … activity … on the premises.” Further it specifically referred to negligence by the club leading the court to conclude that the waiver barred all claims against the club.
Interestingly, the plaintiff did not bring up the issue of whether or not a parental waiver is enforceable. In fact, the issue was not discussed at all. The waiver, signed by the parent of the injured 3-year-old, was enforced and summary judgment was granted.