The 14-year-old plaintiff was struck by a car while crossing the street during an educational field trip organized by the University of Northern Iowa and the State of Iowa. Prior to participation in the event, the plaintiff’s mother signed both a “Field Trip Permission Form” and a “Release and Medical Authorization.” Plaintiff filed a lawsuit against the State, alleging negligence. The State filed a motion for summary judgment based on the documents signed by the mother, and the District Court ruled that the released constituted a valid waiver of claims, granting the motion. Plaintiff appealed, and the Iowa Supreme Court ultimately reversed the ruling. After balancing public policy interests against the need to enforce contracts, the Supreme Court explained that although deference is given to parents’ decisions affecting the control of their children, such deference has limitations in some contexts.

The court noted that “children must be accorded a measure or protection against improvident decisions of their parents.” The Court also considered the “harsh consequences of preinjury releases,” and noted that there is “a clear majority of other courts deciding such releases are unenforceable.” The State argued that as a result of the Court’s ruling, “recreational, cultural, and educational opportunities for youths will cease because organizations sponsoring them will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability.” However, the Court asserted that “the fear of dire consequences from our adoption of the majority rule is speculative and overstated,” noting that they found no reason to believe that such opportunities had been comprised in those other jurisdictions.

NOTE: With this ruling, Iowa joins more than 15 other jurisdictions with similar reulings against minor waiver and release agreements. Approximately 11 jursidictions have case law or statutes speaking favorably to minor agreements, while the remainder of jurisdictions remain undecided. The current trend across the country seems to be against enforcement of preinjury waiver and release agreements signed by parents on behalf of minors participating in recreational activities.

An 11-year-old boy tripped over a guy cable attached to a telephone pole while retrieving a basketball, lacerating his leg. The minor (through his parents) sued the cable company (among others) for creating a dangerous condition and failing to remedy the condition. A plastic yellow guard that wrapped around the guy cable and provided a visible warning of the cable had been moved, and the cable company had failed to replace or fix the condition despite having routinely inspected the pole. The defendant cable company argued that the condition was open and obvious, but the trial court found in favor of the plaintiff, awarding compensatory damages and punitive damages. The defendant appealed, and ultimately the Alabama Supreme Court affirmed the lower court’s ruling of liability, but overturned the determination of punitive damages due to a lack of evidence establishing “wantonness.”

NOTE: Much of the discussion revolves around whether the plaintiff was an invitee on the premises where the incident occurred. The plaintiff was on land belonging to another, which land was the subject of an easement in favor of the defendant. The parties never agreed on plaintiff’s legal status and the court determined that the defendant had waived the issue as to whether it owed the plaintiff a specialized duty at trial.

The 17-year-old plaintiff severely injured himself while attempting to make a tackle in a “pick up” tackle football game without any pads, helmets, or other safety gear. He thereafter sued the New Castle Youth Development Center (a facility that houses youths that have been adjudicated delinquent and committed to the state’s care) and several members of its staff, alleging that his rights were violated under the Eighth Amendment (prohibition of “cruel and unusual punishment”) and Fourteenth Amendment (deprivation of substantive due process) of the United States Constitution. The evidence indicated that immediately after the incident, an employee of the facility asked the plaintiff to tell authorities that he was playing touch football at the time of the injury rather than tackle football. The defendants filed a motion for summary judgment contending that they were immune from liability under the Eleventh Amendment and the United States District Court agreed, finding that the facility was an administrative agency “without existence apart from the Commonwealth.” As for the claims against the individual employees, the District Court ruled that there was insufficient evidence to show a “substantial risk of serious harm” and “deliberate indifference to that risk.” The court stated that the challenged behavior of allowing the youths to play tackle football without equipment “did not shock the conscience.” The plaintiff appealed and the Court of Appeal affirmed the District Court’s decision.

NOTE: In ruling against the plaintiff on the Eighth Amendment claim, the court included the following notable quotable: “Life is fraught with risk of serious harm and the sports world is no exception.” The discussion by the Court of Appeal in terms of the risk evaluation of tackle football is quite interesting. Citing past incidents of publicized spinal cord injuries, the plaintiff asserted that the risk of serious harm inherent in playing tackle football without equipment was “obvious.” However, the Court of Appeal stated that the plaintiff’s evidence shed “no light on the frequency or likelihood of such injuries” and did not mean that there was a “substantial risk.” The Court concluded that there was no “evidence from which a reasonable jury could conclude that serious injury is a common or likely occurrence in tackle football games.” The Court also referred to the fact that there had been no prior reported injuries as a result of tackle football games at the facility, supporting the conclusion that there could be no deliberate indifference to a serious risk on the part of the facility or its employees.

As recently reported in the USA Today, a minor amateur motorcycle rider died this past weekend at the Indianapolis Motor Speedway. The race was a private event sanctioned by the U.S. Grand Prix Racers Union (“USGPRU”).  A spokesman for the USGPRU said that it will discuss ways to make the sport safer. According to the USGPRU’s website, a memorial fund has been established in honor of the deceased minor.

NOTE: The minor release form used by the USGPRU as posted on its website is attached. Is it very short and basic. While the incident occurred in Indiana, the sanctioning body appears to be from Virginia, and the deceased minor was Washington. Indiana has a statute which allows a minor to become partially emancipated for the purposes of filling out the necessary contracts and waiver and release forms in order to participate in motorsports activities. We did not see any information to indicate whether or not the statute was employed for participants in this event.

The plaintiff, a high school student-athlete shot putter, was injured when he was hit with a shot thrown by the defendant during a track meet. As a member of the school’s track team, plaintiff had participated in 10 to 15 similar track meets, and he had thrown the shot himself between 100 and 200 times. The trial court granted the defendant school district’s motion, dismissing the case, and the plaintiff appealed. On appeal, the Court explained that “[i]n assessing whether a defendant has violated a duty of care in the context of an injury sustained during a sport or game, [it] must [be] determine[d] whether the defendant created a unique condition ‘over and above the usual dangers that are inherent in the sport’.” The Court concluded that there was “no evidence in the record that any conduct on the part of the defendants created a unique condition over and above the usual dangers associated with the sport of shot put.” Therefore, the Court affirmed the ruling. The plaintiff attempted to offer the declaration of an expert witness on appeal, but the Court stated that the plaintiff had unreasonably delayed in identifying the expert witness.

NOTE: Technically a determination of the inherent risks in an activity should not inolve the analysis of a participant’s subjective experience. The inherent risks are the inherent risks regardless of anyone’s particular experience or knowledge. Nonetheless, whenever evidence of extensive experience is available, it is generally useful to include from a defendant perspective as it may help balance the equities and alleviate any sympathy facotrs that may be asserted. It would have been interesting to see how the court would have dealt with the expert witness testimony if it had been timely and admissible. It has always been a point of contention, and there is not been total consensus, in terms of whether or not expert witnesses should be allowed to offer opinions to the court as to what it or is not an inherent risk in an activity.

The plaintiff was a high school track athlete who had minimal experience running hurdles. He claimed that the coach told him to run hurdles, but failed to give him adequate instruction, resulting in his personal injury. Additionally, the athlete contended the hurdle he fell over was not set up properly because the horizontal bar was uneven. The defendant school moved for summary judgment on the grounds that the plaintiff had assumed the inherent risks of injury by participating in this sports activity. The court denied the motion and the school appealed

On appeal, the Court affirmed the ruling, finding that the assumption of the risk doctrine in competitive athletics did not completely bar the plaintiff’s recovery. Despite his participation, the Court indicated that the defendant still owed the plaintiff a duty to avoid unreasonably increasing the inherent risks in the sports activity. Due to the alleged dangerous conditions and the lack of instruction given by the coach, the Court stated that there was a triable issue as to whether the risks were increased.

NOTE: Decisions like this are difficult for schools. Inevitably, coaches will be asked to push students to learn and try new activities. The courts walk a fine line in deciding when a coach does or does not increase the risks inherent in an activity. From a defense perspective, it is difficult to accept that a runner on a track team does not generally assume the risk of falling and suffering personal injury while engaging in all track activities. Having read this opinion, a school is left with the tough task of deciding what is sufficient instruction before encouraging an athlete to try a new activity. In the end, this type of decision may tend to discourage vigorous participation in school organized sports.

A high school student injured during a cheerleading practice brought a negligence action against the school board. She alleged that the school board was negligent in the following respects: (1) by failing to adequately supervise the cheerleading practice; (2) by conducting the practice without adequate preparation; (3) by using inexperienced or untrained personnel to supervise the practice; (4) by failing to place protective mats on the floor so as to cushion the impact; (5) by conducting the practice without the coach being present; and (6) by failing to abide by or follow appropriate school board policies and/or procedures relating to extracurricular activities. The defendant school board filed a motion for summary judgment based upon the “Consent and Release of Liability Certificate” signed by the cheerleader and her parents prior to her participation. The trial court granted the motion, and the cheerleader appealed.

On appeal, the court first concluded that the signed certificate clearly and unambiguously indicated the intent to release the school board from liability for “any injury or claim resulting from . . . athletic participation.” The court explained that under Florida law, the language was sufficient to insulate the school board from liability for the negligence claims. The court found that any claim resulting from athletic participation includes the claim for negligence such as was alleged by the cheerleader.

After addressing the sufficiency of the document itself, the court then turned to the issue of a parent’s right to sign a waiver and release and express assumption of the risk agreement on behalf of his or her minor child in the context of a hazardous recreational activity. Just a few weeks earlier, the Florida Court of Appeals (in the case of Fields v. Kirton [addressed in a previous AMWT&C Email Legal Alert]) held that these types of agreements, signed by parents on behalf of minors, were not enforceable as contrary to public policy. The Krathen court specifically acknowledged the Fields decisions, and recognized that the Fields court had certified the question to the Florida Supreme Court for a resolution of a conflict in the law. Nonetheless, the court found its previous 2004 decision in Gonzalez v. City of Coral Gables (enforcing a waiver and release agreement signed by a parent on behalf of a minor participating in a fire rescue personnel training course for school credit to bar negligence liability) to be controlling.

The court noted that the cheerleader’s parents clearly thought that participation in cheerleading was beneficial for their daughter, and they were, thus, willing to “release and hold harmless” the school board from “any claim or injury” their daughter suffered as a result of her participation. The court stated that because it was within a parent’s authority to make this type of decision on behalf of his or her child, the cheerleader and her parent were bound by the signed certificate. Plaintiff’s negligence-based claims were barred, and the court noted that she was unable to present any evidence demonstrating either “gross negligence” or an intentional tort.

Therefore, the ruling in favor of the school district was affirmed. In light of the continuing conflict in Florida law regarding the enforcement of waiver and release agreements signed by parents on behalf of their minor children participating in hazardous recreational activities, the issue seems ripe for resolution by the Florida Supreme Court.

NOTE: This ruling, coming on the heels of the contradictory Florida opinion in Fields v. Kirton, makes the issue of minor participant waiver and release agreements seemingly impossible for the Florida Supreme Court to ignore. Over the past couple of decades, Florida and California were the leaders in a distinct minority of jurisdictions that enforced minor agreements. The viability of minor agreements was questioned, although not directly addressed, by the California Supreme Court in the recent ruling of City of Santa Barbara v Superior Court. Now, minor agreements also face a significant challenge n Florida.

Yesterday, the California Supreme Court issued a lengthy published legal opinion addressing the enforceability of waiver and release and express assumption of the risk agreements. The court held that such agreements cannot protect sports and recreation providers and organizers from “gross negligence” liability, which was defined as as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” This ruling is a departure from prior California case law which supported the conclusion that absent a statute providing otherwise, there was no legal distinction among degrees of negligent conduct (e.g. “ordinary negligence” versus “gross negligence”). As an immediate result of this ruling, one can expect that all lawsuits hereinafter filed relative to injuries suffered by participants in sports and recreation will include a cause of action for “gross negligence.” This decision clearly makes it easier for a plaintiff to create triable issues of material fact and defeat motions for summary judgment. More cases will inevitably proceed toward trial resulting in a high percentage of settlements and increased settlement value as the result of reduced leverage. Courts will be reluctant to decide the absence of “gross negligence” as a matter of law, and juries will undoubtedly have a difficult time evaluating and understanding the distinction between “ordinary” and “gross” negligence.

Perhaps more importantly, the court’s decision may end up having the sweeping effect of immediately voiding existing agreements that are currently being used by the industry. The court’s ruling implied that any agreement that purports to cover more than ordinary negligence (e.g., by the use of language such as “any and all negligence” and/or “all forms of negligence”) are unenforceable as contrary to public policy. As a result, every individual and entity using waiver and release and express assumption of the risk agreements needs to promptly evaluate and analyze their current agreements and make revisions necessary to comport with the new state of the law. Please feel free to contact us for additional information and assistance in this regard.

We additionally note that the court’s opinion seriously questioned the enforceability of waiver and release, express assumption of the risk, and indemnity agreements signed by parents on behalf of minor children participating in recreational activities. The court strongly suggested that it would hold that such agreements are void and contrary to public policy. However, the court explained that the viability of minor agreement was not presently at issue and its opinion did not provide a ruling in that regard. Nonetheless, the Court’s statements are an indicator that the minor agreements will face significant challenges in the future.

A more detailed analysis will follow shortly. In the meantime, for additional comment or information on the ruling please contact Cary Agajanian (cary@agajanianlaw.com), Paul Tetreault (paul@agajanianlaw.com) and/or Bill Anthony (bill@agajanianlaw.com).

NOTE: Sports and recreation associations and facility owners and operator, as well as their insurers, need to be proactive to limit the impact of this important decision and the potential financial liability exposures related thereto.