Risk Management: Plan Ahead

By Doyice Cotten

I attended a rodeo in Georgia recently and witnessed an event that had considerable potential for injury. The event was called the Calf Scramble. The event consists of a large number of children who upon a signal chase a calf around the arena while attempting to pull a tag off his tail. Any children ages 8 or 9 years old were allowed to compete; then children 10-11 years old were allowed.

Recognizing the possibility of injury and liability, the local sponsor and the rodeo required that the parents of all competitors complete a waiver of liability form. Upon completion of the waiver, the child was given a red wrist band to show that the waiver was completed and the child was eligible to compete. Twenty to forty children in each age group competed.

The pertinent parts of the waiver were:

Parent/Guardian Waiver: I acknowledge that any of my children participating in the . . . Calf Scramble is a potentially hazardous activity [sic]. My children will not enter and participate unless they are medically able to do so. . . . I assume all risks associated with my children’s participation in the Calf Scramble . . . including, but not limited to falls, contacts with other participants and calves, the effects of the weather including high heat and/or humidity, low temperature, conditions of the arena, and all risks being known and appreciated by me.

Having read this release and knowing these facts and in consideration of your accepting my child’s entry, I for myself and anyone entitled to act on my behalf or on behalf of my children and/or my estate, waive and release the [sponsors and rodeo], any other persons assisting with the event, and their successors and assigns of each and every of the above [sic] from all claims and liability of any kind arising out of my children’s participation in the Calf Scramble even though the liability may arise out of negligence or carelessness on the part of the persons referred to in this waiver.

The critical question is “Are the sponsors and the rodeo now protected from liability for their own negligence? I see two major problems – one fixable and one that is not.

First, for the problem that is not easily fixable: Liability waivers for injury are enforceable in as many as 47 states, including Georgia. This waiver would probably protect the sponsors and the rodeo if the participants were adults; however the law regarding waivers signed by parents on behalf of a minor is not clear.There are only a handful of states in which there are decisions holding that parents (or guardians) can enter into enforceable waiver agreements on behalf of minor participants (and in some of those states, like Indiana, the situations in which such waivers are enforced are very limited).  In contrast, decisions in approximately 18 states hold that such parental (or guardian) waivers will not be enforced. In Georgia, there have been no court rulings clearly deciding if a parent can waive the rights of his or her minor child (Waivers & Releases of Liability, 2010). So, the waiver may protect or it may not; no one can be certain.

Second, the problem that is fixable: This problem involved how the event was conducted. The announcer told all youngsters in the age group with nametags to gather at the gates at one end of the arena. A large number of children gathered and were told to spread out and continue touching the gates until the signal. The calf was released and the announcer signaled them to catch the calf. After about a minute, one child comes up with the tag from the tail of the calf and is declared the winner. Great! What is the problem? No one checked to see that every contestant had a wrist band signifying that the parent has signed the waiver. No problem – no one was injured. But what if a kid without a wrist band had been trampled by kids or the calf and had been injured? The waiver would not protect.

So, risk managers must think through how an event is to be administered, step by step. What EXACTLY are you going to do? What could go wrong? We have all seen the sign that says PLAN AHEAD – where the “D” is very small because the sign maker did not plan ahead. Planning ahead is critical for the risk manager. In this event, the risk manager planned ahead enough to use a waiver, but did not think through the actual conduct of the event.