Wave goodbye to liability?
“Mother Nature will always have more power than us,” says Caretto, whose guided outdoor recreation company in Minturn has had waivers for adults and children for 19 years. “We can’t predict injuries and we can only do so much to prevent them. I could give someone a three-and-a-half-day safety lesson, and in the first 10 minutes they could flip their snowmobile.”
Caretto’s waiver policy for minors, and that of hundreds of other recreational organizations in Colorado, could change however following a recent decision from the Colorado Supreme Court that reinforces previous rulings that all parental waivers are meaningless in a court of law.
The Colorado Supreme Court in June unanimously overturned two lower court decisions, ruling that David Cooper can sue The Aspen Ski and Snowboard Club for its role in a training accident in 1995 that left him blind.
The Supreme Court ruled that parents cannot waive a child’s right to compensation for injuries caused by a third party. Cooper, then 17, and his mother had signed a waiver surrendering the right to sue in the event of injury or death.
“The Supreme Court decision is telling parents you can waive claims for yourself in advance but not for your children,” says Steve Hopkins, an attorney representing The Aspen Ski and Snowboard Club in the Cooper case.
Peter Reitz, who represents most of ski areas in Colorado in personal- injury actions and is special counselor for the National Ski Areas Association, says the Supreme Court’s decision isn’t a major change in the law, but it’s not a positive thing for any recreational provider.
“The Supreme Court so far has never disposed or upheld minor releases in recreational activities,” he says. “But I think there has to be accountability. One of the reasons we don’t see diving boards and trampolines is because of litigation and liability that have chilled certain types of activities.”
The Cooper case, which will now be argued before a jury, was the first time a minor release had been upheld by a local judge and the state court of appeals in Colorado, Reitz says.
“They upheld it because it was a 17-year-old who had been ski racing for nine years. He had a long-lasting background in the activity. Therefore the judge thought it was compelling,” he says.
Melanie Mills, vice president of Colorado Ski Country USA, says waivers for minors will continue to be used.
“Waivers have been very useful at trials to demonstrate that parents and minors themselves were warned of the risks they were encountering,” says Mills, who is now working on wording changes in the waivers.
Kelly Ladyga, spokeswoman for Vail Resorts, agrees with Reitz in that the ruling doesn’t represent a fundamental change in the law with respect to minors.
“Therefore we don’t foresee that it will significantly impact our operations,” she says. “We have always strived to offer guests a reasonable environment in which to participate in sports and activities at our resorts.”
As Eagle Valley High School students get ready for football tryouts Monday, risk management seminars are held for athletic directors and principals.
“The liability issues have always been the main job for athletic directors,” says Dave Scott, Eagle Valley High School athletic director.
“Accidents still occur and serious injuries and death will occur. Everybody tries hard to insure that doesn’t happen, but when it’s in the nature of physical activity, it’s pretty hard to prevent.”
“We have permission slips, but anybody can sue for pretty much anything, anyway,” Scott says.
In 2000, the Massachusetts Supreme Judicial Court threw out a lawsuit filed on behalf of a high school cheerleader, who fell in 1995 off the top of a cheerleading “pyramid” and broke her arm, requiring surgery.
Her father had signed a release that waived liability on the part of the City of Newton. The judge deemed the father “had ample opportunity to read it, and they are therefore deemed to have understood it.”
To create a safe environment, the Eagle Valley High School athletic department, which spends spends $4,000 on ski, baseball and football helmets annually, makes sure football helmets are tested yearly and reconditioned.
“Everything we publish in our pre-season bulletins is geared towards the safety of student participants. We’re trying to educate the coaches.”
Chip Woods, former executive director of Ski Club Vail says the ruling is a huge issue for any youth sports organization.
“It’s a huge blow for ski clubs, horseback rides, camps and others,” he says. “If anything, this will be discouraging to kids in sports. It’s insulting to parents. We don’t have the ability to say “yes’ or “no’ to judge what is dangerous and what is not.”
If you don’t let the kids explore limits, Woods says, they won’t learn how to be confident or how to deal with fear.
“Some parents are fine having their kid play the violin their whole life, but that’s not how it is for most,” he says.
Attorney Hopkins says the Supreme Court decision on the Cooper case will force bigger ski clubs to look if they have enough insurance.
“And smaller clubs will have to look if they can afford having the kids,” he adds.
Darryl Bangert, owner of Lakota River Guides, a local rafting company located in Eagle-Vail, says if he can’t take kids down the river, he can’t be open for business.
“We run a safe company and we’re so far on the conservative side it’s not something we’re going to change,” he says.
Dan Eckert, owner of Triple G Outfitters of Wolcott, says negligence will always result in a lawsuit, waiver or not.
“My take on it is you’ve got to really keep up and not be negligent in what you do,” he says. “A waiver is just a piece of paper and doesn’t exclude responsibility on our part.”
Eckert, however, says he doesn’t know how this ruling will affect his insurance.
“It’s just going to mean our premiums are going to go up. The buck keeps getting passed down.”
Reitz says he believes the Supreme Court ruling, which relied heavily on the state government’s policy of protecting children, will add to an insurance market that has hardened after the Sept. 11 terrorist attacks.
“If the Supreme Court had upheld the decision of the appelate courts, premiums probably would have gone down,” he says. “I think there is way too much abuse of the judicial system, particularly in recreational activities.”
Noel Harris of Wall St. Insurance in Edwards says insurance decisions on waivers will have to wait.
“There are an awful lot of people involved,” he says. “It just really depends on what the outcome of the trial will be.”
When his daughter, Morgan, climbed a wall, Chip Woods signed a waiver.
“If the kid running it knew how worthless the waiver was, then he never would have cared if I signed it or not,” he says. “I watched the people hooking Morgan up like a hawk. I know enough about it to know they were doing things right. If they weren’t, I would have done them myself.”
Veronica Whitney can be reached at 949-0555, ext. 454, or at email@example.com. Ryan Slabaugh is a sports writer for the Vail Daily. Contact him at (970) 949-0555 ext. 608 or firstname.lastname@example.org