Archive for December, 2010

More Bad News for Minor Sports

December 17, 2010

Galloway v. State (Iowa)
(14-year-old injured on an educational field trip; Supreme Court of Iowa rules that public policy precludes enforcement of parents’ pre-injury waiver on behalf of minor.)

The 14-year-old plaintiff was struck by a car while crossing the street during an educational field trip organized by the University of Northern Iowa and the State of Iowa. Prior to participation in the event, the plaintiff’s mother signed both a “Field Trip Permission Form” and a “Release and Medical Authorization.” Plaintiff filed a lawsuit against the State, alleging negligence. The State filed a motion for summary judgment based on the documents signed by the mother, and the District Court ruled that the released constituted a valid waiver of claims, granting the motion. Plaintiff appealed, and the Iowa Supreme Court ultimately reversed the ruling. After balancing public policy interests against the need to enforce contracts, the Supreme Court explained that although deference is given to parents’ decisions affecting the control of their children, such deference has limitations in some contexts.

The court noted that “children must be accorded a measure or protection against improvident decisions of their parents.” The Court also considered the “harsh consequences of preinjury releases,” and noted that there is “a clear majority of other courts deciding such releases are unenforceable.” The State argued that as a result of the Court’s ruling, “recreational, cultural, and educational opportunities for youths will cease because organizations sponsoring them will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability.” However, the Court asserted that “the fear of dire consequences from our adoption of the majority rule is speculative and overstated,” noting that they found no reason to believe that such opportunities had been comprised in those other jurisdictions.

NOTE: With this ruling, Iowa joins more than 15 other jurisdictions with similar reulings against minor waiver and release agreements. Approximately 11 jursidictions have case law or statutes speaking favorably to minor agreements, while the remainder of jurisdictions remain undecided. The current trend across the country seems to be against enforcement of preinjury waiver and release agreements signed by parents on behalf of minors participating in recreational activities.

Oil and Water

December 17, 2010

Post from Gulf of Mexico Oil Spill Blog (Alabama)

(Alabama Governor Bob Riley urges BP and President Obama to ensure injured residents need not sign unreasonable liability waivers in order to accept claims payments.)

A post from the Gulf of Mexico Oil Spill Blog discussed an interesting issue as the claims process in connection with the BP oil spill moved into its second stage. Obviously, to the extent that BP pays damage claims in connection with the spill, it is interested in capping its exposure and alleviating further liability. However, there is concern being expressed regarding the signing of potential waivers and releases of liability in connection with the claims payments. Governor Riley expressed concerns because the release documents applying to “anyone who is or could be responsible or liable in any way for the incident,” as opposed to just BP. There is also concern about the release being too broad as to the scope of claims, as well as it being applicable to spouses, heirs, parents, partners and others affiliated with the injured parties. Although this news item is not related to sports, recreation, or entertainment, it is instructive as to the need to pay close attention to, and to analyze, the breadth and scope of waiver and release documents that are offered in settlement of claims. The terms do matter, and they can certainly impact important future rights.

NOTE: In the end, BP is not going to settle final claims without some protections. This issue will come down to tailoring the waiver and release documents to a scope acceptable by all parties. As Governor Riley has expressed, “If a release is absolutely necessary, write one that is limited to the person making the claim, the company paying the claim, the damages asserted in the claim, and the information available as of submission of the final claim.”