The school year is swiftly coming to an end. If you are like many parents, you are scrambling to find entertaining, enriching activities for your children during the long summer months. Most children’s summer camps require you to sign a waiver of liability form that relieves the facility and instructors of culpability for injuries that occur on camp premises and during camp-related activities.
Because waiver-of-liability forms have become so routine — you probably have signed dozens of them at your children’s schools, theme parks and community centers — it is easy to forget that you are signing a legally binding contract. If something goes wrong, the courts treat the waiver as a contract when determining liability, meaning both contract and personal injury laws generally apply. The courts may, therefore, consider issues of unenforceability, voidability, scope and fraud.
For example, a judge hearing an injury defense based upon assumption of risks and waiver of liability may specifically consider the following factors:
Public policy of signing away a child’s rights — The appellate court in the 2008 Florida case of Steven Applegate and Suzanne Applegate, Etc. v. Cable Water Ski, L.C. decided that exculpatory clauses were not enforceable against children, whereas clauses limiting liability were enforceable against the parents.
Nonprofit versus commercial activities — The court in the Applegate case limited its ruling to commercial enterprises, noting that public policy supported the ability of community-based organizations that are not driven by profit motives to limit their liability.
Clarity and obviousness of the rights being waived — Features that attract attention to the exculpatory clauses — such as boldfaced or highlighted language — indicate to the court that the parents were aware of the potential risks associated with a certain activity and the rights being waived.
Specificity of the indemnity language — A waiver of liability form that too broadly or ambiguously states the assumption of risks may be held unenforceable.
Read the form carefully before signing a waiver of liability and weigh the risks against the rewards.