I am pleased to be able to run this great article on waivers and releases by two of the leading adventure law attorneys. I am breaking it into two parts which will run in consecutive weeks. It is Reprinted from The CampLine by permission of the American Camp Association and the authors.
Camp managers and camp families appear to understand the significance of an agreement in which the camp seeks protection from certain claims. These agreements are encountered regularly, across a broad spectrum of entertainment, instructional, and other activities.
The agreements (variously called “releases,” “waivers,” and “exculpatory agreements”) have become more important in recent years, for several reasons. Camp activities and environments are expanding beyond the traditional offerings. Campers (and staff) present new challenges with regard to medical, learning, and behavioral issues. And our society is, unhappily, more inclined to “take it to court” than to discuss or negotiate (or forgive!), when the bad event occurs. These and other circumstances have complicated the issue of the duty of care owed to a camper and his or her family and increased the importance of protection from claims.
In this article we revisit releases, addressed by us in previous ACA articles.1 Such an agreement, as discussed below, is a powerful tool for camp management when confronted by an angry or disappointed parent.
What Is a “Release?”
The focus of our discussion is the protection provided by an agreement by Party A that a claim will not be made against Party B for a loss suffered in the future. A “release” is such an agreement. The party signing the release “gives up” the right to sue, for himself or herself, and on behalf of others in some circumstances. The operative words of such an agreement often are: “release, waive, and agree not to sue.” A waiver may be a slightly different animal — but the difference in effect is not significant. Your attorney will help you with the proper wording of the “release clause” to protect you in accordance with the laws of your state.
A release is more effective if it is a part of a larger document which lends support to the release itself, and adds to its enforceability — referred to here as a “participant agreement.”
The Participant Agreement
A larger participant agreement, which might include a “release,” (among other important provisions), can be a valuable tool in the information exchange flowing between an organization and its participants, both in providing important practical information to participants and in providing the organization potential protection from legal exposure. What is the nature of this agreement, or document, and what are its components?
In the title, or perhaps a subtitle, you should inform the reader of the essential nature of the agreement. This will reduce the chances of a reader claiming that he or she had no idea of its significance, or a court finding that the title was inaccurate or misleading, thus rendering the agreement — or portions of it — unenforceable. Again, you will be guided in this matter by legal counsel, but consider stating at the outset, in the title or immediately thereafter in an introductory piece, that the document contains an acknowledgment and assumption of risks and a release (and possibly an indemnity against claims of others).
The parties to the agreement must be identified — for example, the camp and the parents of a camper, or visitor — and it must be clear, in states that allow it, that the parent is signing for himself or herself and on behalf of the minor camper or visitor.
Activities and Risks
It is important to show that the signing party understood the activities and their risks, and a good camp manager will include such a description in the agreement. The agreement might also refer to other documents or a Web site where such information is displayed. This is not simply a matter of strengthening your participant agreement — it is fair and good business to alert campers and their families or visitors to what the camp intends, and what the camp can and cannot do in taking care of the camper or visitor.
Most of the circumstances that can cause harm, including staff and other persons’ conduct, the environment (including terrain, weather, plants, and animals), and equipment are inherent in the camp experience. That is, risks and circumstances that are integral to the camp experience — without which the activity would not produce the pleasure, excitement, learning, or other outcomes desired by the camp and the participant. Other risks also exist. The agreement should include a description of the inherent and other risks (making clear that the list is not complete and that others, not listed, may exist), and the adult or parent should be asked to represent that he or she understands the risks (and has discussed those with a participating child), and nevertheless, agrees to participate (or allows the child to participate).
It is virtually impossible to list every activity and every risk which a camper or other visitor might encounter. In fact, courts are reluctant to grant a release of a claim arising out of an unforeseen event. That being said, using “including but not limited to” language and thoughtfully considering the activities and risks that are described in the agreement is a worthwhile approach. The issue is usually resolved by the court determining whether the loss suffered was within the reasonable (not necessarily actual) contemplation of the parties when the agreement was entered into. Other courts will enforce a release of “any and all claims, known or unknown, and whether or not described in this document.” You must confer with your local counsel to learn what your state law requires and what protection is available to you.
A camp should consider specifically addressing activities that might not reasonably be anticipated by the family or participant — trips off the campus and unique activities or equipment (for example, a zip line or climbing tower) posing risks that might not be understood. Some camps make a point of explaining that independent contractors, not camp employees, may be used for certain services.
Acknowledgment and Assumption of the Risks
The person signing the document is next asked to assume and accept, for themselves and for a minor participant, the inherent and other risks.
Release of Claims
Next, the signing person, for himself or herself and, if state law permits, on behalf of the child (your legal counsel will advise you in this) releases the camp and associated persons and entities from future claims.
The released persons and parties should include those whose interests you wish to protect from a claim. The laws of all but a few states (Louisiana, Virginia, and Montana) allow the release of claims of negligence — that is, the failure of the camp or other released person to act as a reasonable, similarly situated person (manager, wrangler, life guard, counselor, etc.) would have acted under the circumstances. More serious misconduct, including gross negligence, reckless or intentionally wrongful acts, and violations of the law generally cannot be released. Most courts require that the parties are clear in their intent to include negligence in the released acts and a few states require that the intent to include negligence be specifically stated.
Courts are protective of a person’s right to enter into a contract, as they choose, for whatever reason.
However, agreements containing releases are generally disfavored by the courts, for they violate a basic premise of the law — that a person harmed by another will be compensated. As a result, these agreements must be carefully drawn and strictly comply with state law.
State laws uniformly require that a release (including the larger participant agreement of which it is a part) must comply with the ordinary requirements of any contract: consideration (that is, a party receives something of benefit for the promise he or she makes), a meeting of the minds regarding the provisions, the legal and mental competency of the persons signing, and conformity to state law and policy.
In addition, because a release is “exculpatory” — that is, intending to eliminate liability already allocated under the law — agreements containing releases will be strictly construed against the party drafting the agreement, and generally, only enforced if they are clear, fairly and voluntarily entered into, and do not violate public policy. Consistent with these criteria, many states require that the specific release language be conspicuous — that is, stand out so that the release will be effectively brought to the attention of the person signing. This requirement can be met by bolding, enlarged font size, paragraph headings, and generous spacing to allow for easy reading.
Releases work if they are properly drawn and presented for signing in a non-coercive manner. As stated above, almost all states allow releases of claims of negligence, and of the states whose higher courts have ruled on the matter, less than a dozen do allow parents to surrender a child’s right to sue for an injury. Even those states that do not allow a parent to sign for a child generally do allow the parent to release his or her right to recover for their own loss because of the injury to the child.
Careful camps will include an agreement of indemnity; that is, the signing party will protect, defend, and pay the released parties with regard to certain claims — for example, claims of other family members who may suffer a loss if the camper or visitor is hurt, or persons who may be hurt by the camper or visitor.
The agreement may conclude with certain customary and fairly standard provisions, including: an identification of the state law which will be applied to a dispute and the place where a matter must be tried; a provision that the agreement (if state law permits) is binding on the family members and other heirs and the estate of the signing party; a provision that if a part of the agreement is deemed unenforceable by a court, the remainder will nevertheless remain in full force and effect; or other provisions.
The document should be signed by the adult camper or visitor or the parents (preferably both) or guardian of a minor. Some camps ask minor campers or other visitors of a certain age (perhaps fourteen years or older) to sign to reflect their understanding of the activities and risks. See our discussion on this in the “Other Considerations” section of this article.
Much of what we have described above appears to be designed to protect the camp, and that certainly is an important feature of these agreements. However, you will note that throughout the agreement, signing parties are given important information about the camp, including its activities and risks, so that they can make informed decisions about whether to attend and with what expectations. Providing this information at the outset will reduce surprises and disappointments — and complaints.
How a Participant Agreement Might Be Used
The camp should consider having participant agreements signed by all adult campers and visitors and by parents for themselves and on behalf of their minor child (in all but a few states, those under eighteen years of age). Visitors asked to sign might include members of third party user groups. If the visitor’s exposure to risk is slight, or if collecting a participant agreement in a particular situation “doesn’t feel like our camp” (a wedding, perhaps, or other short-term ceremony or event), you can choose not to use an agreement, but understand that accidents can occur even in those situations. Visitors to the camp who are making deliveries or wish to merely inspect or observe the grounds or camp activities would not ordinarily be expected to sign an agreement. On the same token, you should determine whether your liability insurance coverage adequately protects the camp from claims that might arise from these situations.
Camps often overlook the importance of collecting participant agreements from staff who either do not qualify for workers’ compensation coverage (volunteers, for example) or who might suffer an injury that does not qualify for such coverage. These matters should be discussed with local counsel familiar with employment law and the camp’s hiring practices and insurance coverage.
A visiting group — a college club for example — may agree to indemnify a camp against claims of its members, and the camp may feel that the indemnity provides enough protection to make the collection of participant agreements from the individual club members unnecessary. The importance of participant agreements in these situations should be considered on a case-by-case basis.
*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.
Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415 or e-mail [email protected]; www.rebgregg.com
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure programproviders on legal liability and risk management issues. Hansen-Stampcan be reached at 303-232-7049, or e-mail [email protected]; www.hansenstampattorney.com
1 “Releases Revisited,” CampLine, Spring 2007; “The What and Why of Camp Releases,” Camping Magazine, January/February 2007; both articles by Charles R. Gregg and Catherine Hansen-Stamp.