Paintball

[RealtorTommy]

Before a child takes a first swing at a Little League baseball game, a first punch at a dojo, or a first spin in a race car, their guardian usually signs a liability release form.


The documents are intended to protect program organizers from lawsuits if a child gets injured, but the validity of the forms is being challenged in the Florida Supreme Court. Now some sports directors worry youth sports in Florida could be in jeopardy if justices say the forms are no good.

More than 3.5 million children do get hurt playing sports each year, according to Safe Kids Worldwide, an international nonprofit organization dedicated to preventing unintentional childhood injuries. Some say that is a sign waivers are needed to protect facilities, while others say it shows games are not safe without the threat of litigation.

The waivers are central to a case regarding the 2003 death of a Clewiston teen.

Christopher Jones, 14, was killed in an all-terrain vehicle crash at Thunder Cross Motor Sports Park in Okeechobee. Father Bobby Jones signed a release before Christopher got on the track. But the boy's mother Bette Jones, who divorced Bobby Jones, didn't know her son was racing.

Attorneys for Bette Jones argue it was unconstitutional for someone else to sign Christopher's rights away.

"If parents realized everything they were signing away with these forms, they wouldn't do it," said attorney Bard Rockenbach.

Track owners say that argument has broad consequences.

"This ruling will affect any activity where a parent signs a waiver for a child," said Richard Lee Barrett, attorney for Thunder Cross.

And that is a lot of activities.

Cape Coral parks and recreation director Steve Pohlman said anyone using city facilities must sign a waiver, including participants in city-run summer programs and sporting events organized by independent groups, such as Little League and Pop Warner, on city fields. Similar forms get used in facilities all around Lee County and Southwest Florida.

The forms provide an extra defense in court, though not an impervious one, said Cape Coral Assistant City Attorney Marilyn Miller. Those forms have to be signed by an adult.

Michael Dean, vice president of sports insurance company Francis Dean and Associates, said all of his clients are required to get waivers when minors are involved.

"We believe it reminds parents of a certain level of risk that is taken on," Dean said.

That form doesn't erase a parents fears, though. Mother Sheri Boye said she was devastated when her 12-year-old son Richee was hurt during a Cape Coral National League baseball game last year. "There is nothing worse than watching your kid go down," she said.

The injury benched him for a couple days. But Boye said she wasn't interested in suing the league. The organization, she said, does as much as possible to keep the games safe and to deter dangerous activity.

But after a catastrophic injury occurs, such as what happened to Christopher Jones, Dean said parents are often less forgiving. In those events, guardians are more prone to challenge the waivers and take facility owners to court, he said, which is why the forms exist.

If waivers get thrown out, Charlotte County Motorsports Park in Punta Gorda may rethink what it allows, said general manager Linda Jericka.

"Some tracks have done away with minors racing," she said. "Or they say (minors) have to carry their own separate insurance policy. We don't do that right now."

Barrett noted some sports such as motocross allow professional competitors younger than 18.

"This will essentially end that aspect of the sport," he said.

Insurance costs are already a big cost for track and league organizers.

Insurance companies typically charge racetracks between 2 and 3 percent of their gross receipts for coverage. Little League organizations normally pay $50 a year per baseball team, while a Pop Warner football league normally pays about $11 per player. Martial arts studios pay around $9 per student, while dance studios pay around $5 per dancer.

Parents and owners alike fear those costs would spike without insurance waivers.

Joe Luna of Fort Myers signed a waiver before his 7-year-old Zak suited up last year to play tackle football for the Lehigh Raiders. He thinks as little as possible about the potential for injury, he said, much less his right to sue. If the waivers get tossed in court, he fears it would mean higher costs to join sports leagues, but he wants the games to be safe.

But other attorneys said higher costs and new restrictions may not be bad for the public.

"Owners of businesses should not be told beforehand that if they fail to take safety precautions and injure people, they should not be sued," said Naples attorney Mark Weinstein. "Then there is no incentive to keep premises safe."

Dean said a ruling against waivers may not have as great effect as some expect. Already, the waivers provide less protection if a facility is proven truly negligent in an injury.

"We already work under the assumption these waivers, particularly with minors, provide little protection," Dean said.

That doesn't comfort local business owners.

Kyle Zwarg, owner of K. Zwarg's Kenpo Karate in Fort Myers, said he is more concerned with the prospect of going to court.

His dojo serves patrons from age 4 to adulthood. He has only seen minor bruises and injuries at his business, but said if someone is seriously hurt, he shouldn't automatically become a legal target.

"More concern to me is that I can be sued for something that is not my fault necessarily," he said. "I think a person takes on a certain amount of risk when they partake in certain activities."

[p8ntguykenny]

So a divorced mom is pissed off at her husband and blames him for their son dieing and so she takes it out on the rest of us? I'm moving to Canada.

[punkncat]

I really hate that this teen died, it is a tragedy. But I must say, waiver or not. Within the arena of providing as safe and properly operating equipment and facility as possible, such that failure of it or that type of negligence causes and injury, that is where the buck should stop in liability.
People have to realize that many things are inherently dangerous. A good number of them can kill you, and things do happen. We are mortal beings and one day, one way, we WILL die. Unfortunate for many it is not peaceful, nor at a ripe old age.

Given the conduct and atmosphere of our court system in the age of gimme gimme and neverending finger pointing, it is no doubt that this litigation will end in someone paying scads of money for a random event that has to be someones "fault" and resulting in even more encouragement for further litigation and an increase in our liability insurance policies.

sigh

[Mar]

if my understanding is correct (and Mr. Satclaire or Drum can step in and correct me) You cannot waive your right to claim damages for what constitutes gross-negligence, only negligence, and any waiver that attempts to free the vendor from any responsability in the case of gross negligence will typically be found to be "strictly constructed" meaning it will be found to be un-enforceable.


too bad there isn't a moticum of common sense in personal injury law...

[John Satclaire]

That's the general rule, though the conceptual distinction between "gross negligence" and "recklessness" is inarticulable at best and many states just reject its existance.

Either way, you can at most make an enforceable contract to give up your right to sue for allegations of negligence. Even then, issues of whose consent is required for minors, of informed consent, and of "contracts of adhesion" [fn.1] complicate the process, leading to plaintiffs being able to credibly threaten expensive litigation.

Short story: ever since the era that saw the death of Lochner (and yes, I know that wasn't personal injury), this country has been going to Hades in a handcart.

[fn.1] An ineffective waiver of liability where even informed consent by party or parties able to give effective consent is rendered moot, because one cannot obtain an "important" service anywhere without giving up the right to sue. Don't ask me to explain this silly concept in rational terms; to be fair the courts can't do so, either.

[RealtorTommy]

http://web.tcpalm.com/2008/05/22/kirtonanswer.pdf

this gets good.....

There are many twists and turns to this.....

But let's focus on what the fat cats up in Tally will do about waivers.....

[John Satclaire]

Originally Posted by RealtorTommy

http://web.tcpalm.com/2008/05/22/kirtonanswer.pdf

this gets good.....

There are many twists and turns to this.....

But let's focus on what the fat cats up in Tally will do about waivers.....

Hahahaha...

Cooper v. Aspen Skiing Co.,
48 P.3d 1229, 1233-35 (Colo. 2002) .................................................. .....................22
Devine v. Indian River County School Bd.,
121 F.3d 576, 581 (11th Cir. 1997) .................................................. ........................20
Doyle v. Bowdoin College,
403 A.2d 1206, 1208 n. 3 (Me.1979) .................................................. .....................23
Fedor v. Mauwehu Council, Boy Scouts of America,
143 A.2d 466 (Conn. 1958) .................................................. ...................................18

All cites from my 1L legal research and writing brief (fact pattern was a N.H. liability release for a summer camp). Hell, I could have just sent them my old brief for free.

Since there's no statute requiring that parents with full custody (e.g., the father here) involve the other parent to effect a valid waiver of any of the minor's rights, I see this getting slam dunked by the FL Supreme Court, unless they decide to wholesale gut parental waviers... which would do a huge amount of damage to FL rec for minors, not to mention having implications for, say, medical care waivers (though FL precedent seems to be ok drawing a line between stuff in the public interest, like medical and school sponsored rec waivers, and that which isn't, like outside of school rec--that's a disturbing justification for screwing with parental rights).

[John Satclaire]

Favorite passage from plaintiff/respondent's brief:

After Christopher was killed, the Kirtons held a “memory race” in Christopher’s honor in an effort to raise money for a headstone (R. 513). According to Corey Kirton, the Kirtons kept the money that was raised in the “memory race” and never paid for a headstone or gave the money to Christopher’s family (R. 514). It was simply deposited into the track’s bank account (R. 514).

. . . where it was later used to pay legal expenses incurred in connection with this frivolous suit.

[John Satclaire]

Runner-up, on the grounds of "Best Distain for Logical Connection Ever":

Although the decision of any parent that his or her child should participate in an activity may be one that is made with the child’s best interests in mind, the same cannot be said of the separate decision to allow the activity provider to provide the activity negligently. If one purpose of tort law is to protect the safety of children, then the decision to waive the protection tort law affords is a conscious decision to expose a child to injury. It cannot be presumed that a parent who has decided to voluntarily risk a child’s physical well-being is acting in the child’s best interest, no more than it would be presumed that a parent who takes down a pool fence in the presence of an unattended baby is acting in the baby’s best interest.

Amusingly, the issue in Troxell, which is the SCOTUS case finding a consititutional right to raise your kid as you think best that the plaintiff is scrambling mightily to avoid, was basically whether a parent who decided to make a choice that might involve a risk to the kid deserved deference. The answer was yes, because parents are presumed to have thought about the risk-reward issue and decided in the child's best interests.

[Moosepatrol]

Okay I am no legal expert but let's get a grip here. These stories me off. This world is getting so politically correct and "safe" for our kids I want to hurl. I have two boys, they play baseball and hockey. While baseball safety wise is much better than hockey it doesn't matter what sport you play, organised sports, motorcycle racing, karate, sky-diving, you know the risk going in. In hockey it takes one kid to hit my son from behind into the boards and my son will never walk again or may die. Now knowing that statement why does he still play? The love of the game and his friends on the team. The municipal government here removed all of our old playground equipment a few years ago (used to be wood and steel bolted together on top of a sand pit), now it is all plastic with recycled rubber matting so little Johnny won't get skinned knee. AAARRGGGHH! I want my kids to be as safe as possible too but I think we have tipped the scales just a little too far to the paranoid side. Unfortunately it all stems from having your *** sued off because of morons sueing when they knew the risks going in. YOUR KIDS MAY GET HURT IN SPORTS. SUCK IT UP PRINCESS.