By Doyice Cotten
In a 2013 California case (Vahedy v. Remigio), a 16 year-old camper was injured while being transported by a camp volunteer back to the Jews for Jesus headquarters for the final night of the camp. Cecilia Vahedy’s father had signed a “Medical Authorization and Liaibilty Release.” There were a number of issues in the case, but the one addressed in this post regards the possible ambiguity created when the waiver fails to clearly specify that the parent is waiving both the parent’s and the minor participant’s right to sue. The terms of the waiver follow:
The health history in the attached ‘Medical Information and Parental Authorization’ is correct so far as I know. I certify that my child, Cece Vahedy, is in good physical condition, and is able to participate in the entire adventure trip except for the activities listed above as ‘restricted.’ In case of medical emergency, I hereby give by [sic] permission to Jews for Jesus staff member in charge to: hospitalize, and/or secure the services of a licensed physician, surgeon or anesthetist and order any treatment deemed necessary, including anesthesia, injections, or surgery in providing the necessary care for my child as named on this registration form.
By signing this form, I, the parent/guardian acknowledge that an element of risk exists in participating in this adventure trip. I am voluntarily placing my child in these camp activities. I hereby agree to assume and accept full responsibility for any and all risks of injury or damage inherent in camp activities. Furthermore, I agree to indemnify, defend and hold harmless for myself and my successors Jews for Jesus from any and all costs, expenses, and liabilities of every kind directly and indirectly arising from any claims or causes of action by whomever or wherever made or presented for personal injury, property damage, or wrongful death arising out of or relating in any way to my child’s participation in this adventure trip.[Bold added.]
Furthermore, in consideration of the permission granted Jews for Jesus for my child to participate in this adventure trip[,] I voluntary [sic] agree for myself and my representatives[,] successors and assigns (collectively ‘successors’) to release, discharge and waive any and all claims or causes of action against Jews for Jesus and their respective successors and assigns from and for any and all liability including without limitation any personal injury, property damage or wrongful death, arising out of or relating to my child’s participation in this adventure trip.[Bold added.]
I understand that my signature is for both medical and liability release and [*24] I agree that the foregoing language is intended to be as broad and inclusive as is allowed under California Law and that if any portion of this agreement is held invalid, the balance shall, notwithstanding, continue in full legal force and effect.
I have carefully read this agreement and fully understand its contents. I am aware that I am signing a medical release and waiver of liability and indemnity contract between myself and Jews for Jesus. No oral representations, statements or inducements apart from this written agreement have been made and I sign this agreement of my own free will. I understand that my signature is for both a medical and liability release. . . .”
Referring to the emboldened language in paragraph 3, the court stated that the waiver contained “an essential ambiguity, as it does not clearly and explicitly identify whose claims the Father is waiving – his own or plaintiff’s.” The court added that the language “I voluntary [sic] agree for myself and my representatives [,] successors and assigns. . .” suggests that he is releasing his own claims, not those of his daughter.
Responding to the claim that in the second paragraph the Father assumed all risks of injury in camp activities (see the emboldened language), the court once again said that it was not clear what risks were assumed and on whose behalf he was assuming them.
Risk Management Take-Away
When writing or using parental waivers, be certain the waiver language clearly and explicitly states that the parent is waiving both the parent’s and the minor participant’s right to sue. And if an assumption of inherent risks is included, make sure it also is clear that the parent is assuming the risks of loss of both the parent and the minor participant.