— announced that parental pre-injury
releases violate public policy and that a
parent cannot release her child’s future
cause of action for personal injuries.
This is absurd. It’s not just that the
court got lost in the deep weeds comparing pre-injury and post-injury releases,
or that Scott creates moral hazard problems, or that Scott makes it too difficult
for good actors to structure their behavior for everyone’s benefit, Scott also
crushes parental liberty . . . which used
to be considered an important constitutional right.
But, before going there, let’s start here
and set the table.
There are rules. In Washington, liability waivers — despite often being
adhesion contracts — generally are enforceable (Johnson v. Ubarer, LLC, 150
Wn. App. 533 (2009)). one big exception involves waivers that violate public
policy (often as determined not by the
Legislature in advance, but by courts)
(Wagenblast v. Odessa School District,
110 Wn.2d 845 (1988)). Smart business
folks — even those who wish to risk capital in a recreational business catering to
children — know that children can sign
contracts . . . the contracts, however,
generally speaking, are voidable (Rc W
26. 28.015). Which means that, if the
agreement turns out to be a bad deal for
the child, the child may walk away from
the agreement and the business is stuck
with the loss, and a life lesson.
So, pre-Scott, what’s a business — one
that cares about liability (and viability)
— to do? If you could borrow a DeLorean
and go back in time to counsel such businesses, you might suggest that the business hire you to draft a release agreement
(and whatever “cross-marketing effort”
your firm may be pushing). You might
suggest that the agreement be reasonable, understandable, and — if you took
an economics course or had some real-world business experience with P&L responsibility — also incent participants to
manage their own risk.
For the adult customers, it’s easy.
Washington courts routinely (and properly) uphold pre-injury releases for recreational activities. Accordingly, a solution is simple. Draft a liability release for
ordinary negligence and send your client
a bill. But what about the kids? Mom and
dad may not want to leave them in the
lobby and, of course, your client desires
more paying customers . . . assuming its
risk profile is not disadvantaged.
Because cheerleading camp, or fencing, or indoor rock climbing (or even
a charitable fun run) typically are not
considered “necessaries,” you know that
having the child sign the pre-injury release has a rather low return on investment (or, in the words of a third-grader,
“is pretty dumb”). In the event of injury,
the child lawfully could claim she is a
minor and disavow the contract. More
importantly, in your human-nature calculus, you might conclude that the parents are more likely to read the agreement and that words and phrases like
“serious bodily injury,” “paralysis,” and
“risk of death” usually command more
consideration from mom or dad than
junior, who just wants to start climbing.
okay, there’s a solution. Draft a pre-injury release and have mom and/or dad
sign it on their child’s behalf. Although
the release won’t protect the business from willful misconduct (and why
should it?), it will serve its purpose and
allocate responsibility for simple negligence. After all, as a matter of public
policy, why wouldn’t we want to incent
participants in recreational activities
to shoulder some modest amount of responsibility? They also might wish to
invest in insurance and, depending on
their risk profile, make deliberate decisions about which activities to pursue.
That approach seemed to work. Until
1992. Then, Washington’s State Supreme
court decided to engage in policy-making thinly disguised as an appellate
court decision. The court concluded that,
notwithstanding that both mom and her
minor son signed a pre-injury release, the
release did not bar the child’s future personal injury action.
So, what are folks to do in 2013?
Well, that depends. If you’re a minor
child, sign at will. You get the upside
benefit of the release (e.g., access to the
activity and presumably lower prices
because the business is thinking that it
is risk-sharing and externalizing some
of its costs via the release), but suffer
no downside from your choice. In the
event that you later wish to file a law-
suit, the release will not bar the action
(hence the moral hazard problem). If
you’re a parent, similar story. Although
the release will bar your claim, it won’t
bar your child’s claim.
But what if you have a business? Perhaps you have a nonprofit providing
summer camp opportunities or a business that (hopefully) pays taxes, helps
grow the economy, and also provides opportunities that people wish to be available. What do you do?
Well, first, get rid of any lawyers who
provided you with a useless pre-injury
release form that doesn’t do you any good.
There’s no need to pay professionals for
that sort of advice. Second, you may need
to staff up in records management, as the
statute of limitations for these claims can
be lengthy. Third, buy an almanac. Sure,
Washington has its charm — grey winters that never seem to end, ferries that
occasionally run on time, and one of the
largest lava fields in the world — but seriously, there are 49 other states (as well as
a district and some territories) that have
relatively predictable legal environments
and some even have less rain (not to mention tax “incentives”).
But if relocation is out of the question
because you can’t stand the thought that
you might have to brew your own coffee,
what do you do? You have two options.
First, don’t do business with children.
Period. Problem solved — except, of
course, that your business model may
depend on doing business with children
or their families.
That leaves option two. Implement
alternative risk management strategies
If you are a parent, in an average school year, your
child likely will bring home several release forms for
signature. Some forms — in an astonishing disregard
for basic contract law principles — also will require
your young child to sign the release.