By Doyice Cotten

Kimberly and James Shields sued RDM, LLC d/b/a Georgia All Stars (GA) for negligence when Kimberly tripped and fell from  mats on the floor at an exhibition of participants’ routines for parents to view in the practice area of the gym. Their daughter was a participant in Special Twist (a “special needs all star cheer and dance team.”)  Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that was invited to participate in the exhibition on the night in question.

The exhibition was very crowded for the performance with some parents having to wait outside. As Kimberly was looking for her daughter (she was walking toward her daughter’s team, navigating through a large crowd) she fell from the mats covering the floor – a fall described as two feet onto the concrete floor breaking her leg in four places. She had not noticed the mats were not placed in the usual way, so she was not expecting the sudden dropoff. The area had not been marked off physically with rope, tape, or cones and was not visible  because of the large crowd.

The trial court ruled that the claim was  barred both by the waiver which the Shields had signed months earlier and by the Georgia Recreational Property Act (which will be addressed in the next post). This appeal followed (Shields v. RDM, LLC d/b/a Georgia All Stars, 2020).

The Appeal

Shields argued that the trial court erred by concluding their claims were barred by a GA  medical-release form Kimberly signed months prior to the night of the exhibition.

The Waiver

The waiver provides, in relevant part:

In consideration of the services of Georgia All-Star Cheerleading, Inc., its owners, agents, officers, employees and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as GA), I hereby agree to release, discharge, and hold harmless GA on behalf of myself, my children, my parents, my heirs, assigns, personal representative and estates as follows:

I understand and acknowledge that the activities that I or my child engage in while on the premises or under the auspices of GA pose known and unknown risks which could result in injury, paralysis, death, emotional distress, or damages to me, my child, to property, or to third parties. The following describe some, but not all of those risks:

Cheerleading and gymnastics, including performances of stunts and use of trampolines, entail certain risks that simply cannot be eliminated without jeopardizing the essential qualities of the activity. Without a certain degree of risk, cheerleading students would not improve their skills and the enjoyment of the sport would be diminished. Cheerleading and gymnastics expose participants to the usual risk of cuts and bruises, and other more serious risks as well. Participants often fall, sprain, break wrists and ankles, and can suffer from serious injuries. Traveling to and from shows, meets and exhibitions, raises the possibilities of any manner of transportation accidents. In any event, if you or your child is injured, medical assistance may be required which you must pay for yourself.

I expressly agree and promise to accept and assume all risks, known and unknown, connected with GA related activities, including, but not limited to performance of stunts and the use of trampolines …

I hereby voluntarily release, forever discharge, and agree to hold harmless and indemnify GA from any and all liability, claims, demands, actions or rights of action, which are related to, arise out of, or are in any way connected with my child’s participation in GA-related activities.

Georgia Waiver Law

The appellate court stated that the construction of a waiver is “a question of law for the court”⁹ that involves three steps:

• The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning.
• Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.The court noted that the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.”¹¹ 

In addition, it emphasized that the paramount public policy of Georgia is “that courts will not lightly interfere with the freedom of parties to contract.”¹²

The court also made it clear that a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”¹³

• Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”¹⁴

Kimberly argued that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, but the court observed that nothing in the language of the release limits it to any specific program, event, or time period. The court pointed out that the plain language of the release states that it is applicable to 1) “the activities that I or my child engage in while on the premises or under the auspices of GA,” 2) “all risks, known and unknown, connected with GA related activities,” and 3) “participation in GA-related activities.” The trial court granted the Georgia All-Stars motion for summary judgment

Ruling

The appellate court ruled that the trial court grant of summary judgment was proper.

Caution

While the court ruled that the waiver protected Georgia All-Stars from liability for negligence, careful reading of the waiver reveals that it does not mention the word “negligence.” In Georgia, the use of “negligence” is not required by the courts. Be aware, however, that this waiver would not protect the provider in many states. To avoid ambiguity, this writer always recommends that waivers should specifically call for protection from liability for the “ordinary negligence of the provider.”

Notice the strong language used by the courts regarding waivers and Georgia public policy.

Photo Credit: Thanks to Georgia Democrats  via Flickr.