A “pre-injury release” document is one that attempts to contractually limit or waive a party’s right to pursue a claim against a third part for negligence. The document typically states that you agree not to sue or file a claim against another party if you are injured during a particular activity, even if that party negligently causes your injury.
These documents are also called “exculpatory clauses”, meaning that they seek to release a party from liability for negligent conduct that may occur in the future.
In Washington State, a pre-injury release is generally enforceable, but only in the setting of adult-risk sports or recreational activities. Examples of these types of activities include snow skiing, mountain climbing, scuba diving, weight lifting, and other sports like basketball and football.
The court will likely uphold the validity of the agreement as long as (1) the terms of the release are fairly clear, (2) the activity in question is considered high-risk, and (3) the alleged negligent conduct does not fall greatly below the standard of care for the protection of others. The rationale for this view is that the activity presents certain known risks and the adult usually has the choice about whether to participate in the high-risk activity.
Can This Prevent Me From Filing A Claim?
The question, however, is whether a pre-injury release can also be used to bar a child’s potential claim for injury against a negligent third party. The answer is clearly, no.
In 1992, the Washington Supreme Court ruled that a parent does not have the legal authority to waive a child’s own future cause of action for personal injuries resulting from a third party’s negligence. In a previous case, involving an action filed by parents and their child against a ski resort and ski school for injuries the child sustained in a skiing accident. Before the accident happened, the parents had signed an agreement containing an exculpatory clause that released the resort and the school from any future injuries or negligent behavior sustained by them or their child. Although the court upheld this agreement with respect to the parents, it refused to validate the agreement concerning the child’s claims.
Although parents cannot legally enter into a pre-injury release on behalf of their child, this does not stop others from demanding that a pre-injury release be signed as a condition to letting the child participate in certain high-risk activities.
Most of the third parties who request such an agreement are simply unaware that the law will not enforce it if the child should become injured due to that party’s negligent conduct. However, just because a child is injured during a particular activity, does not necessarily mean that the child will have a successful claim against another party.
Lets Take A Closer Look At A Pre-Injury Release
Here’s an illustration. Usually, a child will not have a legal claim for injuries if that child suffers a broken bone while playing football. This activity is commonly recognized as one involving a high risk of harm. And a broken bone is simply one of those risks that can occur when playing this sport.
However, what if the broken bone was caused because the child was wearing defective equipment, the wrong equipment, or not enough equipment? Then a claim may lie against the manufacturer of the defective equipment. For instance, a coach or league may be responsible if either one knowingly issued equipment that was too small, or if either one failed to issue sufficient equipment that is normally worn by a participant of the sport.
In these types of cases, parents need to understand that the existence of a claim is very much dependent on the individual facts involved.
If you have a potential child injury case, contact Davis Law Group.