I am pleased to be able to run this great article on waivers and releases by two of the leading adventure law attorneys. Part I was posted last week. It is Reprinted from The CampLine by permission of the American Camp Association and the authors.
Is This Fair?
Some families, and perhaps some camp directors, might feel it is unfair to seek to be released from responsibility for carelessly harming a camper. Asking a family to release you from your duty of care is a serious matter, involving ethical and practical management issues. It should be carefully considered with your legal counsel and perhaps discussed with a representative sampling of your camp families.
When a camp presents a family with an agreement containing a release, it is saying “we want you to agree, now, that you will not sue us if our carelessness hurts, or even kills, your child.” If the parent asks you to justify this release, what do you say? You can be direct and honest, and explain the value of the participant agreement as an exchange of information about activities, risks, and camp family responsibilities. You might say further that you wish to deter frivolous suits, which occur too frequently in our litigious society. You might also advise that there is not a bright line between injuries resulting from inherent risks (with respect to which, generally, you owe no duty of protection) and those resulting from a camp’s fault or negligence. You, the camp, wish to reserve to yourself the judgment as to the cause of the injury, and if and how to compensate the injured party — because you understand camps and camp activities better than a judge or jury being asked to decide the outcome of a lawsuit. Basically, you will be asking the parent to trust you to use the agreement as you see fit. Although these inquiries are rare, the camp should be prepared for them.
Why a Release? Can’t We Use Just an Acknowledgment and Assumption of Risks?
Yes, a camp can utilize an agreement that contains no release of its liability for negligence, but includes a well-crafted acknowledgment and assumption of inherent risks, for example.2 Such a document provides evidence of the participant’s knowing and voluntary assumption of risks. This evidence can provide the basis for an assignment of fault against the participant, under a state’s comparative fault or comparative negligence laws, thus decreasing or eliminating a participant’s claim against the camp. In addition, it could buttress a defense that plaintiff’s claims should be dismissed under the inherent risk doctrine (the general legal concept that a provider has no duty to protect individuals from the inherent risks of a sport or recreational opportunity — and has no liability for harm resulting from those risks). However, as discussed above, there is not a bright line between injuries determined to result from inherent risks (generally no duty), and those resulting from negligence (breach of a recognized duty). Including a release of liability for the camp’s negligence in your agreement eliminates this murky line and gives the camp more control in determining how to utilize the agreement.
Should the Minor Camper Sign?
Although minors are not competent to contract,3 there can be some real value in having the minor — particularly older minors — sign a participant agreement. The minor, for example, could agree to that portion of the form that describes activities and risks and contains an acknowledgment and assumption of those risks. The document can assist the child in understanding the nature of the activities and risks he or she may confront, making him or her more informed and better prepared for the activities. Although not a binding contract, the document can serve as evidence of the child’s acknowledgment and assumption of risks — inherent or otherwise — thus potentially affecting the legal outcome of a case. As discussed above, sometimes depending upon the child’s age, minors (as well as adults) are capable of assuming risks or otherwise engaging in conduct that can amount to “contributory fault” — ultimately decreasing any recovery obtained against an organization in a lawsuit. In addition, minors are subject to your state’s version of the inherent risk “no duty” doctrine, if any. Choices about whether or not to have a minor sign one of these agreements and how that will be accomplished are important matters to discuss with your legal counsel.
Cut and Paste
Avoid the temptation to cut and paste from another camp’s form. Each organization has its own unique operation and mission and factors that may be important to include or emphasize in the participant agreement. Importantly, there are many words used in connection with these agreements that have distinct legal meanings, which may vary from community to community and state to state. We have seen cut and paste efforts that result in provisions that contradict each other or that confuse or misuse words with distinct legal meanings.
Form Implementation and Consistency of Information
Educate your staff about the value, proper use, and implementation of the participant agreement you choose. For example, don’t let participants or parents cross out words or provisions before they sign. This practice can have significant legal ramifications — potentially compromising the value of the altered agreement as well as agreements entered into with the organization’s other participants/parents.
Your staff comments, Web site, and other information distributed or available to campers, families, and the general public should be consistent with each other and with the language included in your participant agreement. Caution staff about comments such as “these agreements aren’t worth anything, but our [board, insurance company] requires they be signed.” A Web site that says “don’t worry, your child is always safe with us” also can impact or threaten the ultimate enforceability of the participant agreement in subsequent litigation. Importantly, guarantees of safety or absolute assurances of any kind can have other negative legal ramifications.
Varying State Laws and Federal Restrictions
As discussed above, a few states do not enforce releases at all. In other states, certain laws can affect the enforceability of a release in certain circumstances. For example, some courts have ruled that the language of a state’s “inherent risk” law effectively prohibits those providers from obtaining a written release of their liability for negligence. A state’s inherent risk law may also require that certain language be included in any agreement used with participants (for example, many of the “equine” laws). In addition, the National Park Service and some regions of the US Forest Service restrict the use of releases for those who operate under permit or license on those lands (instead requiring some variation of what has been termed a “Visitor’s Acknowledgment of Risk” form). Legal counsel should review applicable state and federal law in developing an appropriate participant agreement for your organization.
More and more camps and other organizations are using the Internet for program registration or other purposes and transitioning previously paper documents — including the participant agreement — to an electronic form that requires an electronic signature. Often, this is done with the assistance of a third party service provider who is helping the organization manage their registration and, potentially, their database. Transitioning to online forms can be an efficient and “greener” way to manage your registration and other operations.
However, exercise caution with online documents — particularly those, like a participant agreement, that are intended to be binding contracts. Specific electronic signature laws govern the validity of online signatures and of the online process, as we discussed in the Fall 2010 CampLine article, “Are You Ready for the E-Sign Revolution?” Although an electronic signature is acceptable under the law, a variety of important steps must be addressed to assure the validity and integrity of the electronic (contract) record and the accompanying online process, so that the record can be effectively created, stored, retrieved, and introduced and used as evidence in court. Having a minor sign the electronic record with their parents raises additional issues.
Frequently, a third party provider (or internal consultant) is not familiar with e-sign legal issues, and you are well served to have your legal counsel work with these providers to get it right. Your legal counsel and even another adult representative of your camp families can ultimately act as “dummy” parents to review the online signature process to address any issues before it goes live.
Carefully consider with your legal counsel the provisions (in addition to those discussed above) to include within the participant agreement. It is worth your time to think through (being consistent with your camp’s unique operation) the purpose for which the agreement is to be used and applicable law.
The Big Picture
Remember, the use of a written participant agreement is not an overall panacea. A camp that takes the position “I just need a release of liability, and then I am set” is not considering the bigger picture. Endeavoring to run a professional and quality program and engaging in responsible risk management practices are arguably the most important ways to manage and minimize the risk of loss to both your participants and to your operation. Developing a solid participant agreement for use with your camper families, visitors, and potentially your staff (volunteer or otherwise) is just one aspect of effective risk management practices.
Give careful thought to how your camp will use participant agreements in its operations. Importantly, consider the variety of activities going on in the camp environment and what the agreement is intended to cover. It is worth your time to understand the big picture and develop participant agreements that fit your camp’s needs and, importantly, comply with the law.
*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
2 (Alternatively, a written assumption of risks can include an express “assumption” of the risk of an organization’s negligence, and if enforced by a court, provide the organization with protection essentially equivalent to a release for negligence.) An acknowledgment and assumption of risks is the type of document required in newly drafted ACA mandatory standard PD.30.2, for camps that allow adult campers/staff the choice of whether or not to wear a helmet for horseback riding activities. Certainly, the “acknowledgment” referenced in that standard could be included within the scope of a larger participant agreement, depending upon the circumstances and applicable law.
3 A minor is not capable of releasing his or her own rights to sue for negligence in a pre-injury release because, with some exceptions, he or she is not competent to enter into contracts. If a minor does agree to a release, the contract is considered voidable — that is, the minor can disaffirm (reject) or ratify (affirm) the contract by their words or conduct within a reasonable time after they reach adult age. Commonly, the minor disaffirms an agreement containing a release by filing suit. As a result, it is often customary to ask a parent to agree to release a minor’s claims on the minor’s behalf.