You know the drill – take your child to a birthday party at a trampoline complex, rock climbing gym or parkour center, and sign a release before your child can participate. When your child is injured, is that release enforceable? Are you (or your child) without recourse? As with most things, it depends. “Exculpatory contracts” – waivers in which one party releases in advance negligence claims against another party – are generally disfavored in the absence of specific state statutes recognizing their validity. Because Colorado is a recreation-oriented state, and liability waivers enhance the ability of commercial vendors to offer recreation-related services, its legislature adopted a statute (C.R.S. 13-22-107) recognizing the validity of such waivers. The statute is also unusually far-reaching in that it allows parents to prospectively waive their child’s negligence claims. Wyoming, another recreation-oriented state, for example, does not have similar legislation protecting recreation providers.
There are limits to the effectiveness of waivers executed on behalf of children, though, even in states such as Colorado. The parent’s decision must be “voluntary and informed,” for example. If the waiver does not give sufficient information as to the risks the child will face while engaging in the activity, the waiver may be found to be unenforceable. Likewise, if the waiver is vague as to the types of claims actually being released, it may not be effective to waive all types of claims. A waiver will not release a claim of “gross negligence,” “willful and wanton negligence,” and intentional misconduct under any circumstances.
If you are a recreation provider, take care to take steps to ensure that your waivers will be held by a court to be enforceable! If you have a question about your waivers, or about your organization’s risk management in general, feel free to contact us.