2013 Online Waiver Product Waiver Program (for managed agencies only)
Is that parental liability waiver worth the paper?
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Transcript of Is that parental liability waiver worth the paper?
the
The Impact of State Parental Rights Law on Youth Sports
Is that Liability WaiverWorth Paper
...it’s Printed On?
Dina RaymondBusiness Affairs Manager
ESPN Wide World of SportsrunDisney
•Exculpatory clauses are widely disfavored everywhere so to be enforceable courts will impose stringent and exacting requirements for them to be upheld
•This discussion below sets forth the general landscape for the enforceability or non-enforceability of waivers/releases of liability
•Waiver agreements should only be drafted and updated by experienced individuals
•This presentation does not address the recreational use statutes that all states have
DisclaimersI would not be a proper lawyer if I didn’t have disclaimers…
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UNDERLYING LEGAL THEORIES
•Contract Law – Freedom to contract and typically enforced contract provisions vs. protecEons of tort law and public policy
•Inherent Risks / Implied and Express AssumpEon of Risk / Contributory Negligence
•Parental Rights (ConsEtuEonal Law) vs. Parens Patriae
•Simple Negligence vs. Willful Misconduct / Gross Negligence
•Governing Law
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CONTRACT LAW
•Offer, Acceptance, ConsideraEon (and not illegal)
•Competency
•ConstrucEon
•Indemnity Clause -‐ shiSs the enEre loss from one to another who bears all of the costs for damages resulEng from contract breach or torEous acEvity.
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ASSUMPTION OF RISK/CONTRIBUTORY OR COMPARATIVE NEGLIGENCE
•AssumpEon of the risk is a defense of varying degrees.
•Is it just contributory negligence?
•Complete defense or parEal defense depending on jurisdicEon
•Implied assumpEon -‐ reasonable vs. unreasonable
•Some courts do not recognize assumpEon of risk principal at all and use contributory negligence principals instead.
•Many allow express assumpEon of inherent risk
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PARENTAL RIGHTS
•The Court consistently recognizes that parental rights are consBtuBonal rights (14th Amendment Due Process).
•However, in the absence of expressed statutory or judicial authorizaBon to do so, parents tradiBonally have had no legal authority to waive, release, or compromise tort claims by or against their child.
•The common law rule that a parent cannot compromise their minor child's tort claims is based on the proposiBon that "the guardian has no authority to do any act which is detrimental to his ward.“
•Many of the courts that have held parental pre-‐injury waivers invalid have done so based on the fact that parental post-‐injury waivers are invalid.
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PARENTS PATRIAE
•LaBn for "parent of his of her country." •Is the doctrine by which the state acts "in its capacity as provider of protecBon to those unable to care for themselves.
•Given the rights of parents to make decisions for their minor children, parental waivers stand between two compeBng interests: the duty of the state to protect children and the right of parents to raise their children
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WILLFUL MISCONDUCT/GROSS NEGLIGENCE
•Exculpatory agreements "generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, or to any conduct which consBtutes an intenBonal tort…” PROSSER AND KEETON ON THE LAW OF TORTS 484 (5th ed. 1984)
•Forget it
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GOVERNING LAW
•Is it possible to increase enforceability of a waiver by choice of law and/or forum?
•Conflicts of Law/Choice of Law-Forum state’s choice of law rules will apply-Must be a conflict in the potenBally applicable laws-Which jurisdicBon has a more substanBal interest
•Forum Non Conveniens-PlainEff’s choice of forum is usually given a strong presumpEon
•Roll the Dice!
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OTHER INFLUENCING FACTORS
•Against Public Policy - Tunkl Test-Activity suitable for public regulation-Party seeking exculpation performs a public service-Party seeking exculpation willing to perform service for any of the public-Party seeking exculpation possesses a decisive advantage in bargaining power-Party seeking exculpation uses power in a contract of adhesion-Public seeking services must be under the control of service provider and subject to service provider’s carelessness
Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963)
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OTHER INFLUENCING FACTORS
•Profit vs. Not-‐for-‐Profit -‐ public policy desire to discourage negligent commercial endeavors
•Tort Bar
•Economically Important Groups (those offering recreaEonal opportuniEes)
•Enforceability of a Parental Indemnity -‐ parEes intended for the indemnifying party to act as a liability insurer for the negligent conduct of the indemnified party
•RecreaEonal Use Statutes
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ELEMENTS OF A WELL DRAFTED WAIVER
•Clear & unambiguous•Needs to be conspicuous•Needs to be understandable to an average person•Needs to spell out all possible consequences of assumed [inherent] risks (death) and all risks whether know or unknown.
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ELEMENTS OF A WELL DRAFTED WAIVER
•Should not be over-‐reaching
•Needs to be enforceable to the fullest extent of the law
•Needs to have consideraBon like any contract
•Comply with any applicable statutory requirements
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NEW STRATEGIES?
•IndemniBes – Rely on parental indemniBes rather than waivers where enforceable
•For companies, parBcularly with acBviBes in mulBple jurisdicBons, a well wrigen waiver could sBll be very useful as they more ohen than not are decided on a case-‐by-‐case basis
•SelecBon or non-‐selecBon of governing law / forum
ConclusionEven setting aside the exceptions, it is very difficult to draft a release/waiver that is guaranteed to withstand judicial scrutiny in every state or multiple states given the variations in standards for each. Moreover, because state statutes can affect whether or not an exculpatory clause will be enforced (for example, non-profit vs. profit, inherent risk vs. negligence), a “one size fits all” approach is simply not feasible. A waiver/release that is clear, unambiguous and as thorough as possible may nevertheless be deemed sufficient for the jurisdictions that favor enforceability or courts taking a different stance.
States Not Permitting Not Addressed / Unsure
Alabama - J.T. v. Monster Mountain, LLC (754 F. Supp. 2d 1323) (December 2010) District of Columbia
Arizona- question of fact for jury (not contractual), Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 111 P.3d 1003, 1010 (2005) Kansas
Arkansas- Williams v. United States, 660 F.Supp. 699 (E.D.Ark. 1987) Kentucky
Connecticut (Tunkl Test/negligence vs. inherent risk), Hanks v. Powder Ridge Restaurant Corp., 885 A.2d 734 (Conn. 2005) Mississippi (not likely)
Hawaii – negligence, Leong v. Kaiser Found. Hospitals, 71 Haw. 240 (1990), Douglass v. Pflueger Hawaii, Inc., 110 Haw. 520 (2006).
Missouri
Illinois - Simmons v. Young Life, 2008 U.S. Dist. LEXIS 78034 (N.D. Ill. Aug. 20, 2008) Nebraska
Iowa - Galloway v. State, 790 N.W.2d 252 (Iowa 2010) Nevada
Louisiana - La. C. C. Art. 2004, Costanza v. Allstate Insurance Co., 2002 U.S. Dist. LEXIS 21991 (E. D. La. 2002) New Hampshire
Maine - Rice v. American Skiing Company, 2000 Me. Super. LEXIS 90 (Me. Super. Ct. 2000) New Mexico (Follows Tunkl for sports waivers for adults Berlangieri v. Running Elk Corp., 134 N.M. 341 (N.M. 2003)
Montana - Mont. Code Anno. §28-2-702 Oklahoma (follows strict public policy test for adults, Burd v. KL Shangri-La Owners, L.P., 2003 OK CIV APP 31 (Okla. Ct. App. 2002)
New Jersey - Hojnowski v. Vans Skate Park, 901 A.2d 381 (N.J. 7/17/2006)
Oklahoma (follows strict public policy test for adults, Burd v. KL Shangri-La Owners, L.P., 2003 OK CIV APP 31 (Okla. Ct. App. 2002)
New York – for profit, place of recreation /amusement, NY CLS Gen Oblig § 5-326
Oklahoma (follows strict public policy test for adults, Burd v. KL Shangri-La Owners, L.P., 2003 OK CIV APP 31 (Okla. Ct. App. 2002)
North Carolina – Kelly v. United States, 809 F. Supp. 2d 429 (E.D.N.C. 2011), only possibly enforceable for non-profit activities sponsored by schools, volunteers, or community organizations
Oregon – But see Oregon - Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390, 400 (Or. Ct. App. 2013) under review, Bagley v. Mt. Bachelor, Inc., 2014 Ore. LEXIS 1 (Or. Jan. 7, 2014)Pennsylvania - Simmons v. Parkette Nat'l Gymnastic Training Ctr., 670 F. Supp. 140, 142 (E.D. Pa. 1987).
Oregon – But see Oregon - Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390, 400 (Or. Ct. App. 2013) under review, Bagley v. Mt. Bachelor, Inc., 2014 Ore. LEXIS 1 (Or. Jan. 7, 2014)
Tennessee - Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) Rhode Island
Texas – commercial activities, Paz v. Life Time Fitness, Inc., 757 F. Supp. 2d 658 (S.D. Tex. 2010) South Carolina (generally not favored in adult cases)
Utah - Hawkins v. Peart, 37 P.3d 1062 433 (Utah 10/30/2001) (minors only, superseded by statutes for skiing and equine, Tunkl test used in adult)
South Dakota (upholds broad pre-injury releases for adults, Couch v. Lyon, 2013 U.S. Dist. LEXIS 160770 (D.S.D. Nov. 5, 2013))
Virginia - Hiett v. Lake Barcroft Community Association, 418 S.E.2d 894 (Va. 1992), Aldridge v. Atl. Rural Exposition, 67 Va. Cir. 404 (Va. Cir. Ct. 2005)
South Dakota (upholds broad pre-injury releases for adults, Couch v. Lyon, 2013 U.S. Dist. LEXIS 160770 (D.S.D. Nov. 5, 2013))
Washington - Vodopest v. MacGregor, 128 Wn.2d 840 (Wash. 1996) Vermont (assumption of inherent risks skiing adults, 12 V.S.A. § 1037
West Virginia - Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621 (S.D.W.Va. 2004) Wyoming
States Permitting In Certain Circumstances
Alaska - Alaska Stat. §09.65.292 (2006)
Arizona-equine only Ariz. Rev. Stat. §12-553 A.2
California – non-profit only (Tunkl Test), Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559 (Cal. App. 4th Dist. 1990)
Colorado – all C.R.S. § 13-22-107 (2003), must be voluntary and informed, Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867 (10th Cir. Colo. 2013)
Connecticut – Public Policy (Tunkl Test), CONN. GEN. STAT. § 45a-631(b), only up to $10,000 (minors), CONN. GEN. STAT. § 52-557, inherent risks for equine
Delaware- inherent risks, negligence must be called out in release, Jahndee Hong v. Hockessin Ath. Club, 2012 Del. Super. LEXIS 340 (Del. Super. Ct. July 18, 2012)
Florida – inherent risks only; Fla. Stat. § 744.301(3), parental indemnity also against public policy
Georgia – (possible) Geo. R. Lane & Associates v. Thomasson, 156 Ga.App. 313 (Ga. App. Ct. 1980); DeKalb County School System v. White, 260 S.E. 2d 853 (Ga. 1979).
Hawaii- motorsports facilities, inherent risks only H. R. S. §663-10.95
Idaho – inherent risks for skiing, equine, outfitters, guides and probable subject to public policy analysis , Idaho Code § 6-1106, Idaho Code §§ 6-1801 to 1802, Idaho Code § 6-1201to 1206 , Davis v. Sun Valley Ski Educ. Found., 130 Idaho 400 (Idaho 1997). No assumption of risk.
Indiana – emancipated minors in motorsports, Indiana Code, §34-28-3-2, inherent risks, Wabash County YMCA v. Thompson, 975 N.E.2d 362 (Ind. Ct. App. 2012), Negligence must be specifically listed in release.Maryland - BJ's Wholesale Club, Inc. v. Rosen, 2013 Md. LEXIS 897 (Md. Nov. 27, 2013), rejects Tunkl Test
Massachusetts- non-profit only, Sharon v. City of Newton (Mass. 6/10/2002), Quirk v. Walker's Gymnastics and Dance, 2003 Mass. Super. LEXIS 210(Mass. Super. Ct. 2003)
Minnesota – Public Policy (Tunkl Test) Moore v. Minn. Baseball Instructional Sch., 2009 Minn. App. Unpub. LEXIS 299 (Minn. Ct. App. Mar. 31, 2009)
North Dakota –ordinary negligence only, must not be ambiguous, Kondrad v. Bismarck Park Dist., 2003 N.D. LEXIS 3 (N.D. 2003), Hillerson v. Bismarck Pub. Schs., 2013 ND 193 (N.D. 2013)
Ohio - non-profit only, Zivich v. Mentor Soccer Club, 82 Ohio St. 3d 367; 696 N.E.2d 201 (Ohio 6/29/1998)
Virginia – equine activities only, VA. CODE ANN. 3.1-796.132(B) (Michie 1993), charitable organizations
Utah –equine and livestock only, Utah Code Ann. § 78B-4-203, ordinary negligence included, Penunuri v. Sundance Partners, LTD, 2013 UT 22 (Utah 2013), skiing inherent risks only, Utah Code Ann. § 78B-4-401 Washington – enforceable in adult high risk sports only
Wisconsin –Wis. Stat. § 895.525, subject to public policy test, Osborn, v. Cascade Mountain, Inc. and American Home Assurance Company 2002 Wisc. App. LEXIS 1216