By Doyice Cotten
Just this week I was told by a health club employee that “Waivers are not worth the paper they are written on.” I had not heard that bit of erroneous information in some time; most sport, recreation, and fitness professionals today have at least a general idea that waivers can be effective in protecting an enterprise from liability for injuries.
The fact is that in at least 45 states, a well-written waiver signed by a assenting adult can effectively protect an activity provider from liability for injuries resulting from the ordinary negligence of the activity provider. In fact, courts in more than a dozen states have enforced parental waivers (a waiver signed by a parent on behalf of a minor child) so that the child could participate in an activity. So, waivers can protect – but waiver law varies, sometimes significantly, from state to state.
How the law differs by state is exemplified by two 2012 parental waiver cases. These two cases are compared below:
|Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340||Rosen v. BJ’s Wholesale Club, Inc., 2012 Md. App. LEXIS 100|
|Date:July 18, 2012State:Delaware
Setting: Health club, supervised child play area (while parent works out)
|Date:August 30, 2012State:Maryland
Setting:Membership warehouse club, supervised child play area (while parent shops)
|Incident & Injury:3-year-old child fell from indoor play equipment – broken arm||Incident & Injury:5-year-old child fell from an elevated play apparatus – brain injury|
|Requirement: Parent must sign a waiver releasing club from liability for accidental injuries – including those resulting from the use of equipment or negligence of the health club.||Requirement:Parent must sign a waiver releasing club from liability for accidental injuries – including those resulting from use of the play center or the negligence of BJ’s Wholesale Club.|
|Allegation by Parent: The Complaint makes no specific allegations as to what was wrong with the playground equipment or how the club’s negligence caused or contributed to Jaden’s injury. Rather, the Complaint alleges that the club was negligent in that they (a) failed to take reasonable measures to make premises safe for invitees; (b) failed to properly and reasonably inspect the premises; (c) failed to take reasonable measures to make the premises safe; (d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and (e) were otherwise negligent.||Allegation by Parent:Upon entering the store, she dropped Ephraim off at the play center. While Mrs. Rosen was shopping in BJ’s, Ephraim climbed onto “an elevated plastic play apparatus known as Harry the Hippo” at the play center and then fell approximately thirty-eight inches before striking his head on the floor below. Although “most of” the concrete floor of the play center was covered with thick foam padding, Ephraim landed on a section of floor, which was covered by only a thin layer of carpet. Landing head first, he sustained life-threatening injuries.|
|Delaware Waiver Law:Waivers that are crystal clear and unequivocally indicate that both parties contemplated release from liability are not against public policy and are enforceable.||Maryland Waiver Law: There is no public policy preventing parties from contracting as they see fit, provided the singer knows and agrees to the terms of the agreement.|
|Delaware Parental Waiver Law: The court ruled that the liability waiver releases the plaintiff’s claim against the health club. It is interesting that the court made no mention or issue regarding the fact that the injured party was a minor. Since courts are generally more receptive to parental waivers involving governmental agencies and non-profit entities, this ruling concerning a commercial enterprise would seem to indicate that the ruling would be similar if a governmental agency or non-profit entity were the relying party.||Maryland Parental Waiver Law: The court stated that Maryland public policy favors protecting the claims of children and carries additional weight where the tortfeasor is a commercial enterprise. It went on to say that whether this ruling applies to government agencies and non-profit organization must await a case involving such an entity. The court further ruled that parental indemnification agreements were unenforceable.|
|Are Parental Waivers Enforced?: Yes for commercial enterprises; no indication for governmental agencies or non-profit entities.||Are Parental Waivers Enforced?: No for commercial enterprises; no indication for governmental agencies or non-profit entities.|
Note the similarity between the two cases and the disparity in the rulings. As stated earlier, waiver law varies from state to state. The variation is not limited to cases involving minors. As examples, some states require the use of the word “negligence;” some do not. Some require that the inherent risks be listed; others do not. Some do not enforce waivers for some activities, while enforcing them for others. Most states do not enforce waivers when there is “gross negligence;” a few do.
While a waiver can protect against negligence, it does not always do so. The prudent sport or recreation manager is one who learns about waiver law in his or her state and is aware of the protection provided – and where protection is not provided.
Photo Credit: Thanks to WalkingGeek at http://www.flickr.com/photos/wengs/356482144/sizes/n/