In 2003 a man took his three children and another child snow-tubing at the Powder Ridge Ski Resort in Connecticut. The man’s right foot became caught between the tube and a man-made bank. He broke his leg and required several surgeries. The man had signed a waiver, defense, indemnity and hold-harmless agreement and release of liability, but the establishment was still found negligent.
Based on the ruling in this case (Hanks v. Powder Ridge, 2005) and litigation in related cases on the subject of “waivers, releases and consents,” I propose a different approach to improve your odds should you be subjected to a lawsuit charging negligence. I believe that recreation agencies can be more proactive in matters of risk exposure by shifting the assumption of risk where it rightfully belongs–on the user of services.
Thoughtfully crafted participation agreements are much more effective than traditional releases, waivers and consents that do not hold up in court, and that offer neither party any real protection.
Participation Agreements Are Better
A participation agreement is more likely to be viewed as binding on both parties, thereby enhancing its ability to be upheld as legally sound. Such an agreement sets out for the record the communication efforts made in advance by the recreation agency to notify participants of inherent dangers, possible injuries and the effects of participation. Participants are then free to choose whether or not and how they will participate. This type of agreement does not relieve the recreation agency of its duty to be free of negligence.
In effect, no document can seek relief from liability for being negligent because doing so asks the legal system to ignore the duty to serve and protect the public. No document can seek to ask for release of culpability in advance. Negligence and its redress have always been and will be litigable. (I can give you my permission to play softball, but I cannot give you my permission to break an ankle because field-maintenance personnel ignored a known hazard that caused the broken ankle.)
Meeting The Legal Test
In the Powder Ridge case and similar cases, the court once again reiterated the basic legal issues facing all recreation agencies and their obligations in alerting participants to risks. The court reasoned that agreements must be able to meet the following standards:
· Agreements to participate do not insulate a recreation organization from liability for negligent acts.
· All documents to be signed by participants should be coherent.
· Inherent risk is just that, but negligence cannot be waived.
· “Other risks” (non-inherent risks) must be prevented.
· Contracts cannot relieve an organization or individual from negligent acts.
Cases will continue to go “either way,” not so much because they are different types of cases, but because of jurisdictional differences, new judicial insights, factual differences and new or more effective legal strategies and defenses.
The Hanks’ court took particular aim at what are called exculpatory language agreements. Their principle is misguided aim forgiveness from guilt ahead of time of the possible offending party, usually the agency or organization offering the service. It is a way of “warning” signers that they may not sue if they are injured, but such documents are looked at as coercive and illegal, therefore indefensible by most courts. No one can sign away the right to sue for injury before an injury occurs, as it is impossible to know ahead of time whether an injury is due to normal, inherent risk or someone else’s negligent performance.
The court said, “ … enforcement of a well-drafted exculpatory agreement purporting to release a snowtube (sic) operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy.” On the basis of that ruling, the court overturned the lower-court ruling and ruled in favor of the claimant for injuries suffered as a result of the operator’s negligence. The man whose leg was badly damaged and who was irreparably harmed for life won on appeal.
Avoiding Litigation Is Still The Best Practice
Whenever I have presented this information to audiences, some have commented that using these participation agreements seems like overkill and can scare people off. But I would rather have someone walk away knowing that the risks have been fully explained and has decided that those risks are not worth it, than have an uninformed individual get hurt and sue because no one told him or her of the serious potential for injury.
Someone who walks away from a service, program or activity will not sue you for negligence!In seeking signatures for multiple activities, greater creativity may be necessary to get more than one agreement into the intake process, but that time will be well-spent compared to lawsuits and the consequences of an agency’s ability to continue to provide services.
A sample participation document, in keeping with the legal points from the Hanks ruling, has several key areas:
· Characteristics of the activity or service with a full explanation of the inherent risks
· Full disclosure of the injury risks that can and do occur
· Disclosure of the hazards involved in the facilities, areas and/or playgrounds
· The likelihood of such injuries
· Statement of the rules of participation and participant obligations in safety, and reporting of conditions that may affect the safety of the activity
· Voluntary signatory section and date information.
Of course, these are simply starting points. Great care and consideration should be given to additional areas of information, and the tone of the document is important so as to assure that it is voluntary, not coercive, that it is signed by a parent or guardian with clear legal standing or an adult on his or her behalf. Important in any such undertaking is to use your own legal counsel in developing such participation agreements.
Safe Or Sorry
The “secret” to risk assessment and risk management is to be assertive, proactive and aggressive in pursuit of protection of the agency and its participants. Anything short of this approach leaves an agency vulnerable. Reducing risk is possible; removing risk altogether is not.
As a sad consequence of the aforementioned Powder Ridge case, the facility is now closed. The “winner” in the case has permanent damage to his leg that will require lifelong care, and his disability is permanent. What might be the effects of such litigation in your agency’s history? Wouldn’t you rather be safe than sorry?
Joseph A. Panza, Ed.D., is an Associate Professor for the Recreation & Leisure Studies Department at Southern Connecticut State University. He can be reached via e-mail at firstname.lastname@example.org.