As a parent of three, it seems like at least weekly I am asked to sign a Release or Waiver of liability for some activity my children want to participate in. Whether a birthday party at a gym, a ski school, or a simple field trip, more and more businesses are insisting on liability releases before offering their services. Over time, the signing of waivers and releases has become almost second nature to many of us. We sign them without thinking, largely for convenience, often downplaying their significance and without a full understanding of what they may mean.
Be forewarned: In Massachusetts, the signing of a legal liability waiver for yourself or a child is extremely significant. Broadly-worded releases protect entities from any liability for any injury whatsoever, even in cases where a business was clearly negligent and harmed your child. To put it in clear terms, with a properly worded release a business could escape liability for injuries done to you and your child by an intoxicated or otherwise impaired employee or worse.
As a trial lawyer, I have seen waivers and releases result in tragedy and injustice. Adults and children injured or killed by negligent acts have unknowingly signed liability releases, and Courts have upheld those releases even where the injuries were clearly caused by negligence.
And that is the fundamental problem with releases and waivers: While they might seem to be an “agreement” reached between two parties (the business and the parent) they are not. No consumer bargains for someone being careless and injuring them or their child. When you send a child to a birthday party at a gym, you may understand and be willing to accept the risks inherent in the activity. But you would never accept the risk of that gym using faulty equipment, or its employees acting carelessly and hurting your child. And if you read most releases carefully, that is exactly what they do: they give the person obtaining the release immunity from any act, no matter how careless or negligent.
So what is to be done? Is there some way around a release? Unfortunately, it is settled law in Massachusetts that prospective waivers and releases of liability are generally enforceable. See, e.g., Sharon v. City of Newton, 437 Mass. 99 (2002). While many jurisdictions have, as a matter of policy, voided releases for negligence, Massachusetts is not one of them. The signer of a release is deemed to have read the release, understood it, and agreed to it, and if the injury is caused by negligence, the signer (or his child) cannot recover.
Massachusetts law does, however, place some limits on releases. For example, a party cannot use a release to avoid liability for injuries caused by gross negligence or reckless conduct. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 19 (1997). While proving gross negligence or recklessness can be substantially more difficult than proving simple negligence, it may offer an avenue of recovery.
Further, a good argument can be made that a party cannot obtain a release of liability for a violation of a statute. Henry v. Mansfield Beauty Academy, 353 Mass. 507, 510-511 (1968); Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 19 (1997); Vallone v. Donna, 49 Mass. App Ct. 330, 331 (2000); Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606, 608 n. 2 (1989). Therefore, if it can be shown that a person who caused an injury violated a statute, the release may not apply to that liability claim.
In the best of all worlds, Massachusetts courts would reconsider the allowable scope of releases when it comes to consumers, for example by voiding releases for injuries caused by negligence. This would recognize, as some jurisdictions have, that releases are not truly bargained-for contracts.
Until that happens, if it ever does, the best approach is to be aware of what you are signing. Whenever possible, modify releases by hand to exclude injuries cased by negligence–literally write “does not apply to injuries resulting from negligence” on the release. Bear in mind that in a very real sense, when you sign a release for your child, you are giving someone legal immunity for negligently injuring them. Plain and simple. And if the worst should happen, talk to a lawyer who understands the exceptions in the law that may allow for recovery even in the face of a release.