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Return to Archives Home Page | Sports Litigation Alert Home PageMay 21, 2010Liability for Injuries in a Summer Camp Setting: Who is Responsible?By Sara KoopermanWhile federal and state constitutions bestow on parents the right to determine what is bestfor their children; this interest does not also secure a parent’s right to sign a waiver forhis/her child to engage in a specified activity. Thus a parent is legally unable to release anorganization from potential tort liability on behalf of his/her child so that the child canparticipate in an activity. More clearly stated pre­injury waivers signed byparents/guardians for their children are not presumptively enforceable. If a child getsinjured while participating in a group sport or fitness activity, the service provider, entityor organization running the activity is the responsible party, regardless of any signedwaivers.Put simple, Liability Waivers that are signed by parents for their children will not hold upin court.This has enormous implications for any entity, facility or organization that holdsrecreational activities for children. It means that programs must be run with extreme care,staff must be hired accordingly, and a hefty insurance policy should be in place. Asfitness providers in this increasingly obese society, we should not shy away fromcontinuing to provide every opportunity for children to exercise, play sports and partakein recreational activities _ we simply need to be aware of the issues at hand and proceedaccordingly.This situation has played out again and again in states and cities across the country. Thereare, of course, subtle differences in how the laws and regulations are written for eachstate. In Florida, for example, waivers are enforceable to waive all liability fornegligence. However, if injury was caused intentionally, the waiver will not be enforced.Further, if the activity knows that injury will probably result, then the release will not beenforced.In Woodman v. Kera, LLC the court’s decision invalidated a liability release signed by a5­year­old boy’s parent and let a negligence suit go forward against a commercial playarea operator after the child broke his leg. The court looked at the common law principlein Michigan that a parent has no authority merely by virtue of the parental relationship towaive, release or compromise claims of his or her child. In his lead opinion, JudgeMichael Talbot said under the current state of both statutory and common law, the waivercould not stand. The judge states further that, _This court is aware of no legislativeenactments upholding exculpatory agreements, executed by parents on behalf of theirminor children before injury, that waive liability for injuries incurred in eithercommercial or nonprofit settings. _ In the absence of a clear or specific legislativedirective, we can neither judicially assume nor construct exceptions to the common lawextending or granting the authority to parents to bind their children to exculpatoryagreements. Thus, the designation or imposition of any waiver exceptions is solely withinthe purview of the Legislature._In a case decided by the Florida Supreme Court in 2008, a release signed by a parent onbehalf of a child seeking to engage in a commercial activity was ruled not enforceable.The ruling was based on the premise that parents do not have the right to waive a minor’sright to full liability against a commercial operator.In yet another trial, Shaner v. State Sys., a Pennsylvania trial court held a waiver ofliability form signed by a minor and her father does not prevent the minor fromrecovering damages for injuries sustained during a university softball camp.Here, a 14­year­old girl broke her leg while participating in a softball camp run by auniversity’s softball coach and staffed by university employees.She sued Pennsylvania’s higher education system, alleging negligence. The defendantargued that because the girl and her father had signed a waiver of liability form as part ofthe registration process, neither the university nor the staff assumed liability for anyinjuries sustained at the camp.The trial court granted defendant a directed verdict, holding that the release barred theplaintiff’s claim. The plaintiff filed a post trial motion, contending the court erred inenforcing the release.Vacating its order, the trial court found that the release could not be enforced against thegirl’s claim for damages because (1 ) she was a minor when she signed the release form,and, thus, incompetent to enter into a contract; and (2) her father did not have theauthority, simply by virtue of being a parent, to release the girl’s claim against defendant.Treating the release of liability as a type of contract, the court cited the general rule that aminor is not competent to enter into a valid contract and noted that contracts with minorsare voidable upon the minor’s disaffirmance after reaching the age of maturity. Here, thegirl’s pursuit of the lawsuit when she reached maturity signified her disaffirmance of thecontract.Some operators of commercial recreational activities have decided not to take minors ondangerous activities or in recreational activities based upon these rulings, but most havesimply decided to take the risk that they won’t have an accident. Many of these entitiesare poorly insured and lightly capitalized and could go out of business upon being sued.The bottom line is that any service provider involved in offering recreational activity tochildren needs to be completely informed regarding the state laws, fully insured, andabsolutely prudent in delivering safe, well­staffed, programs.Again, by no means should we cease to provide recreational, fitness and sports activitiesfor children! Conversely, we live in an obese society and _ more than ever before _physical activity is unquestionably a critical element and priority in every child’supbringing. Technology, video games and overall lifestyle changes are keeping childreninside their homes, in front of computers and TV_s more than ever before. We all mustbe advocates for physical activity, fresh air and healthy competition for our children. Theintention of this article is simply to inform every provider of children’s activities of thelegal implications, and stress the extreme importance of running your programs with theutmost of care.Sara Kooperman is the CEO of SCW Fitness Education and Les Mills Midweaved by Windows InternetExplorer 8" Subject: Liability for Injuries in a Summer Camp Setting: Who is Responsible? ­ SportsLitigation Alert Archives Date: Sat, 12 Jun 2010 20:24:09 ­0500

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