What are the legal implications of a liability release?
May 6, 2010 7:18 AM   Subscribe

What are the legal implications of a liability release? Specifically, my daughter will be attending a park summer camp as she has for the last few years. One thing that has always stuck in my craw is the liability language in the release form; specifically the bolded:

I hereby give permission for my child to participant in park activities, including swimming and field trips. I fully assume all responsibility for injuries she/he or I may receive or articles lost while participating in these activities or while in travel to or from said activities and field trips, and hereby release the Chicago Park District and its employees from liability for any injury I or my child(ren) may sustain.I have received, read, and understand the “Program Information Sheets for Parents” (for Summer Camp and PARK kids only) and agree to abide by the policies stated therein. I understand that this form will be due the first day of class or my child will not be enrolled. I have read and agreed to all the information contained in the above Parental Agreement and have filled out emergency information on my child(ren).

To my way of thinking, they ARE responsible for my daughter while she is in their care. Screw this boilerplate crap. Do I risk not having her accepted to the camp by redacting the liability stuff or should I just suck it up and sue the shit out of them if, god forbid, something did happen? How legally binding is something like this?

Any stories, anecdotes, etc., welcome.
posted by Kskomsvold to Law & Government (13 answers total) 4 users marked this as a favorite
I know they will not allow her to participate if you don't sign this waiver. I'll be interested to see the answers to "how legally binding is something like this".
posted by Eicats at 7:39 AM on May 6, 2010

This is the sort of question you should take to a qualified legal professional in your area, who is familiar with the laws in question.

After all, I would hate to give you some advice then have you sue the shit out of me if, god forbid, something did happen.
posted by Mike1024 at 7:40 AM on May 6, 2010 [4 favorites]

Best answer: My father, who was an attorney, always snorted at and derived significant amusement from those things when I was a kid.

The story as I was told it: first, apparently there is a limit to what rights you as a parent can sign away on behalf of your child, so some of the more expansively written language is probably not enforceable. Second, the waiver isn't going to protect them from claims arising from gross negligence on their part, and a lot of situations that result in serious injury to a child would probably involve (or a good lawyer could argue that they involved) gross negligence.

He never had any problem signing them, even the really outlandish ones.

I'm sure, if he were here right now, he'd probably caution me to include that all of this is potentially jurisdiction specific and not necessarily applicable to your state, decades out of date by now, etc. So take it as an anecdote, nothing more.
posted by Kadin2048 at 7:45 AM on May 6, 2010 [2 favorites]

Best answer: In general, boilerplate releases of liability (that is, an agreement that is not freely and competently negotiated between parties of equal bargaining power and sophistication) cannot protect one party from responsibility for negligent or reckless acts.
posted by mmf at 7:49 AM on May 6, 2010

Response by poster: Thanks Kadin and mmf. I've been signing these things for the last three years with nary a worry and always wondered if they would stand up in court.

Mike1024 - Yes. Obviously. I'm not searching for F. Lee Bailey here. I wouldn't sue you either. As much as I like the UK, I'd rather travel there under happier circumstances.
posted by Kskomsvold at 8:02 AM on May 6, 2010

What mmf said.

You can sign away your ability to sue if you are knowingly participating in a dangerous activity. This is what happens when you go skydiving, trail riding, or what have you. Hell, this same wording is in your gym contract. If you sign up to climb a rock wall, then you can't very well sue if you fall off the thing and break a hip.

However, the most you can only release them from liability for dangers that you can assess and reasonably expect. You can still sue if you fell off the rock wall because a piece of the wall broke off or the belayer was drunk.

Don't worry about being able to sue if you daughter gets hurt (ugh). If they were supposed to be watching her then you can still get some money for it.
posted by Willie0248 at 8:04 AM on May 6, 2010

I was going to say what Kadin and mmf said.
posted by Pax at 8:11 AM on May 6, 2010

Best answer: In general, your child would still have a claim for damages no matter what waiver you signed, as suggested by Kadin2048 above. These kind of agreements also generally can not waive responsibility for willful or reckless conduct, although they might prevent a claim by the parent for simple negligence. Courts seem to grant more leeway to non-profit organizations and there are all kinds of rules relating to when you can and can not sure the Government.

Key Google terms would be "liability waivers" and "exculpatory agreements." this law school summary should give you a pretty good overview of the law.
posted by Lame_username at 8:11 AM on May 6, 2010

Best answer: This exact question (child injured at a summer camp, parents had signed waiver) was the topic of the big practice memo, brief, and oral argument of the year-long legal research & writing class my first year of law school. It was designed that way so that when the students were assigned opposing sides to argue, it would be fair because the facts/law of the case in the jurisdiction chosen (New Hampshire, if I recall correctly) were roughly equal in each side's favor.

A number of the lawyers and judges who came down to judge the mock arguments were reported to have said the problem was flawed because obviously one side would win and so the students who had to argue the other side were at a disadvantage. But some said it was obvious the camp would win, others said it was obvious the parents would win. Plenty said they were glad they didn't have to decide for real.

Which is a long way of saying that this is a highly fact-specific question. It's also jurisdiction-specific, since one thing I do remember is that in several states, it's not a hard question at all, but again, the states split in different directions. In one, exculpatory agreements are typically void as a matter of public policy. In another, nonprofit and municipal providers of children's activities are expressly exempt from suits for negligence. In another, it depends on whether there were other providers of the same kind of activity. And so on.
posted by Partial Law at 8:26 AM on May 6, 2010

My lawyer father agreed with Kadin's father. :) As do I. Most of these waivers are pretty silly.
posted by Eyebrows McGee at 8:26 AM on May 6, 2010

Best answer: All of my information is Canadian, so it's similar but not the same.

I think that you can waive liability for willful or reckless conduct, or gross negligence, but it's more likely to require an explicit statement that you're waiving that type of harm.

More to the point, in Canada, a child can only really enter into a contract for "essentials", and so something like this won't matter one lick. For example, the BC law would be the Infants Act.

Obviously, I have no clue if this situation is true in Illinois. Talk to a real lawyer who actually practices in the jurisidiction.

here's the wikipedia page on Capacity for a bit of info.
posted by Lemurrhea at 8:29 AM on May 6, 2010

Response by poster: Thanks everyone. Parent Worry Level is now at Green status.
posted by Kskomsvold at 9:12 AM on May 6, 2010

I am not the OP's attorney. I second the comment about facts and jurisdiction - those will make the most difference.

I would caution you that "reckless or negligent" can, legally, be a pretty high standard. Non-negotiated contracts are not per se unenforceable, as has been pointed out above, and you don't appear here to have explicitly waived liability for reckless or negligent acts, but that has a very different meaning legally than we would use in common parlance.

That said, as an attorney, when I negotiate releases for my clients, I always seek the broadest release I can get, regardless of whether or not there's some specific issue. I wouldn't take that language to mean that they're gonna be throwing your kid over cliffs or anything. One thing you could try is signing it with a restriction, if you like - sign, "Kskomsvold, provided that my child cannot engage in [X specific activity] without my prior consent" - if there's something you're worried about that you don't want your kid to do.
posted by mccn at 10:34 AM on May 6, 2010

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