by Jay H. Krulewitch

This article originally appeared in the December 2017 issue of Trial News, the monthly publication of the Washington State Association for Justice .

“Really knowing is good. Not knowing, or refusing to know, is bad, or amoral, at least. You can’t act if you don’t know. Acting without knowing takes you right off the cliff.” — Ray Bradbury, “Something Wicked This Way Comes”

“By the pricking of my thumbs, something wicked this way comes” — William Shakespeare, “Macbeth”

This is a two-part series. In the first part, I will be discussing pre-injury release waivers with respect to the claims of children or minors. In the second part, to be published in a future edition of the Trial News, I plan to discuss pre-injury release waivers as they apply to adults and an emerging trend amongst state courts, which either have restricted the effect of pre-injury release waivers vis-à-vis the claims of adults or have declared them to be invalid under the law. I hope to also explore the potential for change in this area of the law in the State of Washington.

A: Encounter with the Devil: Greetings from the Odious Pre-Injury Release Waiver with Respect to the Claims of Children or Minors!
Just the other day, I happened to take my daughter to register for a swim class at the City of Mountlake Terrace Recreation Pavilion. The City of Mountlake Terrace had decided to upgrade its system for the registration of kids in its various swim programs. It was a bustle of activity and lines as parents waited to set up an online profile for their child, and then waited in another line to register for the class they wanted. Patiently, I waited. Finally, it was my turn to hop onto a computer and, with a few clicks, I was happily creating my daughter’s profile . . . that is, until I made it to the last page. On the last page, as the parent, I was asked to enter my initials (signifying agreement) to the nefarious pre-injury release waiver. Sadly, this is a waiver that many of us have seen in countless variations over the years. So, I did what lawyers do best: I created a ruckus! I did not go quietly into the night. I did not put my initials on that online version of the waiver. I called attention to this issue. I asked to speak to someone. You bet. I stood out like a sore thumb: sadly, I was alone in my protest, in my obstinate defiance to the online requirement for my initials to be placed to this odious pre-injury release waiver. Of course, there was no one on duty able to answer why this release was being used, or why it was on a city form, and why it was being used when it was in clear violation of Washington law. The folks at the desk were there to do their job, to register children for their swim classes—they did not design this release, they did not create the online page requiring a parent to signify that the release was “just fine” with a couple keystrokes of their initials! No, I felt like I had stepped into a bit of an alternate universe, somewhat like the strange happening in Green Town, Illinois, where on one strange fall day, an early Halloween if you will, a good person, Charles Halloway, happened to stiffen up his spine to confront an evil Mr. Dark and his Pandemonium Circus in a story that was so deliciously given to us by master storyteller Ray Bradbury in his classic, “Something Wicked this Way Comes.” Sadly, in our real story, there is no Charles Halloway. There is no hero to put a stop to the evil and deceitful use of pre-injury release waivers as they apply to the claims of children in the State of Washington. At least, not yet. And, it seems that while the Washington Supreme Court spoke more than a quarter century ago and, in very clear language, declared pre-injury release waivers with respect to the claims of children to be invalid for reasons of public policy, we still see such waivers being routinely used hither and yon, by both public and private entities.

B: Is the Devil all that Bad? or, What is a Pre-Injury Release Waiver?
“So,” you might ask, “why all the fuss?” After all, we are talking about perfectly fine businesses, public and private schools, and municipal governments all using their own personal variant of a pre-injury release waiver, are we not? It is just a legal document, carefully drafted, so, it must be okay. Right? Wrong! It is not right! It is downright deceitful, outrageous, and illegal for any private business or municipal government, including longstanding recreational programs, schools and school athletic programs, or religious organizations to be using a pre-injury release waiver in the State of Washington with respect to the claims of injured children.

C: The Devil is in the Details: What does a Typical Pre-Injury Release Waiver Look Like?
What is a typical pre-injury release waiver as it applies to the claims of children? Here is one such example which the City of Shoreline recently used:

I am 18 years of age or older, fully competent and am the parent or legal guardian of the minor children shown on this Liability Waiver Form. It is important to me that I and/or my child(ren) be allowed to participate in recreation programs and community events offered by the Shoreline Parks, Recreation, and Cultural Services Department. I understand that these programs and events include, but are not limited to, dance, sports, fitness, aquatics, and other special interests classes, and I understand there are special dangers and risks inherent in these programs and events including, but not limited to, the risk of serious physical injury, death, or other harmful consequences which may arise directly or indirectly from my participation and/or the child’s participation in the activity. HAVING READ THIS WAIVER AND BEING FULLY INFORMED OF THESE RISKS and in consideration of me and/or my child(ren) being allowed to participate in the activity and/or use the City facilities, I assume all risk of injury, damage, and harm to myself or my child(ren) which may arise from my participation or my child’s participation in the activities or use of City facilities. I further agree to release and hold harmless the City of Shoreline, its officials, employees, and agents, and agree to waive any right of recovery that I or my heirs and successors may personally have in the future to bring a claim or lawsuit for damages against the City of Shoreline, its officials, employees, and agents for any personal injury, death, or harmful consequences occurring to me or my child(ren) arising out of my participation or the child’s/children’s participation in the activity.

D: The Devil Was Defeated Long Ago: Pre-Injury Release Waivers Vis-à-Vis the Claims of Children Were Found to be Invalid by the Washington Supreme Court in a Seminal Case Decided Over a Quarter Century Ago!
In the State of Washington, the Washington Supreme Court has spoken loud and clear in declaring the invalidity of pre-injury release waivers as they apply to the claims of injured children or minors. See Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 495, 834 P.2d 6 (1992). In the Scott case, decided more than twenty-five years ago, Justin Scott and his parents appealed “the dismissals of their tort claims against a ski resort and a ski school for injuries suffered by Justin in a skiing accident. The ski school’s motion for summary judgment was granted based upon an exculpatory clause in the ski school application and the ski resort’s motion for summary judgment was granted based upon a theory of implied assumption of risk.” See id. at ___.

In overturning the decision of the trial court, the Scott court pointed out a minor does not have the capacity to enter into a contract. See Scott, 119 Wn.2d at ___. The court further held that:

“[S]ince a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury. In situations where parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child’s rights might occur. Numerous cases in other jurisdictions have considered the validity of preinjury releases signed by a parent and concluded that such releases do not bar the child’s cause of action for personal injuries. We agree with this view . . .”

See id. at ___. The court further held as follows:

“[T]o the extent a parent’s release of a third party’s liability for negligence purports to bar a child’s own cause of action, it violates public policy and is unenforceable. However, an otherwise conspicuous and clear exculpatory clause can serve to bar the parents’ cause of action based upon injury to their child. Therefore, we hold that Justin’s parents’ cause of action is barred by the release; Justin’s own cause of action is not barred.”

See Scott, 119 Wn.2d at ___. It is worth noting that while Scott has long stood for the principle that pre-injury release waivers are invalid with respect to the claims of minors, in the same breath, it upheld the use of properly-worded pre-injury release waivers with respect to the claims of adults. This dichotomy, this split between the rights of children as opposed to the rights of adults vis-à-vis the issue of pre-injury release waivers will be discussed in the next installment (Part Two) of this article in a future edition of the Trial News.

In a case that predated the Scott decision, the Washington Supreme Court held that “exculpatory releases from any future school district negligence are invalid because they violate public policy.” See Wagenblast v. Odessa School District No. 105-157-166J, 110 Wn.2d 845, 848, 758 P.2d 968 (1988). In Wagenblast, the court considered and struck down a pre-injury release form required for students to participate in a school athletic program as being in violation of public policy. See id.

E: Why Entities Continue to Dance with the Devil: Why Are They Still Using Pre-Injury Release Waivers with Respect to the Claims of Children?
What seems very clear is that an entity, whether it is a school (public or private), a municipal recreation program, a swim program, a private gym, a field trip sponsor, or a church or synagogue program, along with other organizations, are using pre-injury release waivers to limit their liability. While there is no doubt that Washington law finds such releases to be invalid with respect to the claims of children, what do these entities hope to accomplish in using them? For starters, they hope to convince parents not to assist their injured child in bringing a claim for damages when there is an issue of negligence regarding how the child was injured. By using obfuscation, or what I believe to be fraud or deceit, they hope to limit their liability “when something goes wrong with their activity.” Can it truly be said that such groups, many of which have private legal counsel to advise them on such matters, really claim ignorance of the law? Can they truly claim, in good conscience, that they did not know about the law, that they have never heard of the Scott case? At best, this kind of behavior seems to be disingenuous; at worst, it seems to be outright deceitful.

Another reason for the use of such pre-injury release waivers is that the entity or organization hopes the parent or guardian, who signed the release on behalf of the injured child, will just assume that the child has no right to sue after the child suffers an injury from such an activity. After all, they signed the pre-injury release waiver, and it appeared to be a legal document, so the injured child must be prohibited from bringing a claim for damages. End of story.

The problem with such misguided reasoning to support the use of pre-injury release waivers with respect to the claims of children is that it teaches adults and children alike that what is most important is avoiding liability at all costs. This ethos, to do whatever you can to avoid liability, is completely counter to American notions of individual liberty, responsibility, and accountability. The American civil justice system is predicated on the idea that we are all responsible for our actions. But businesses and entities that use a pre-injury release waiver to protect themselves from the claims of injured children are merely looking to limit their risk when, in fact, they should expect to be held accountable if they were negligent. This is why they have liability insurance, to cover their program or their business: if a child is injured as a result of some kind of negligent hazard or conduct, then they can and should turn the claim over to their insurance carrier to handle.

If they are a business, they want to turn a profit. If they are a school, they want to see their numbers grow and to achieve a reputation as a fine educational institution. If they are a swim or recreation program, they want to be known for excellence in their programming. If they are a city recreation program, they want to be known for serving their citizenry well. But they do not want to be sued if they are negligent. Not only are they scared of the monetary risk they face from a lawsuit, they do not want to have a tainted reputation, of being known to have suffered the tag of “being negligent.” Thus, many programs put their blind faith into a pre-injury release waiver, an invalid document, hoping to gain a measure of protection should a child participant suffer an injury in their program. Thus, even though Scott is now well-settled law, these businesses and entities use pre-injury release waivers, in contravention of Scott, to dissuade decent parents and guardians from assisting their child with bringing a claim for damages when the child was injured arguably due to a negligent hazard, some negligent conduct, or other negligent problem with the program.

F: If You Meet the Devil on the Road, Vanquish this Old Foe without Hesitation: Some Future Advice for Plaintiff Attorneys!
Plaintiff attorneys need to know that just because a parent or guardian has signed a pre-injury release waiver so that their child can take part in a sport, activity, recreational program, or even a school program, such releases are not even worth the paper they are printed on in the State of Washington. When considering the claims of injured children or minors, plaintiff attorneys should be aware that a defendant may put up some initial resistance to such a claim for damages by pulling out a copy of a pre-injury release signed by one or both parents. This defense should be quickly dispatched with the use of the Scott case cited above. If the program happens to be a school program, then the attorney should consider using the Wagenblast case discussed above. Any attempt on the part of defense counsel to find some loophole should be dealt with in a professionally assertive fashion. There is no such loophole! So, do not fall for the charade that the release has any power or force of law behind it. For your purposes, consider any defense to the claims of your injured minor client based on such a release as a hindrance and nothing more. If necessary, plaintiff’s counsel should consider bringing a declaratory judgment action to have the so-called pre-injury release waiver declared null and void by a court of law.

Jay Krulewitch, EAGLE member, practices personal injury, civil rights, and criminal defense in Lake City, Seattle. He is the Editor-in-Chief of the Trial News.