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by Win Gilliland, The Outdoor Network © 2003*
Colorado Senate Bill 253 was signed into law by the Governor on May 14.
The new legislation expedites the legal process by making it legal for
parents to release their minor’s rights to sue for negligence. Such
a lawsuit could be decided in summary judgment (before trial), saving
both plaintiffs and defendants significant court costs and legal fees.
Currently, most courts around the country will not enforce a waiver signed
by a parent on behalf of their child attempting to release the rights
of their child. Consequently, most courts will allow the child to bring
suit.
“Allowing a parent to release a child’s rights provides
significant protection for organizations offering recreation and sport
programs,” said Cathy Hansen-Stamp, co-editor of the Outdoor Education
& Recreation Law Quarterly. According to co-editor Charles Gregg,
parental waiver of a minor’s right to sue is currently supported
by the courts in California, Connecticut, Massachusetts, Ohio, and Wisconsin.
Colorado, however, will be the first state to pass a law applying the
doctrine specifically to general recreation. Gregg believes that the legislation
will influence other states. “It is natural to assume that other
states will take a second look at their policy, particularly states that
have recreational interests that are well represented with their legislature,”
he explained.
Anchorage-based outdoor recreation attorney Tracy Knutson agrees. “What’s
happened in Colorado has sent a ripple through the entire industry,”
she said. “There is no doubt that you will see this legislation
in other states. We have every intent of introducing this legislature
in the new session next fall, and I expect that a lot of Western states
will do the same.”
Attorney Stephen Hopkins, who helped draft the original bill, said,
“It might prompt recreational interests to lobby for similar legislation.
This bill was successful in Colorado because an economically important
group was saying ‘we want this, we need this.’”
Public policy in most states reflects the states’ interest in
protecting minors, but these policies can have a detrimental effect on
those who provide recreational opportunities for minors. Travis Baier,
owner of Rimrock Adventures, a river outfitter based in Fruita, Colorado,
notes, “We have always required both the parent and the child to
sign acknowledge and assumption of risk waivers, but under the old law
we still could have been sued.”
“The specter of some child coming back and suing years down the
road is not a pleasant scenario,” said Tom Klema, owner of Durango-based
Peregrine River Outfitters. “For outfitters, this protection comes
at a very opportune time.” The insurance market is tight, and many
programs, including Peregrine, have seen hikes in premiums upwards of
50 percent. “Without this added protection, we might have seen insurers
refusing to cover minors and outfitters going out of business. It could
have jeopardized our ability to find insurance.”
Outward Bound West Executive Director Bruce Fitch agreed. “Big
insurance companies are already retreating from adventure travel and wilderness
education. This legislation will help alleviate some of the pressures
of finding affordable insurance, especially for smaller programs.”
For many of these small programs, even those with comprehensive insurance
coverage, a lawsuit brought by a minor could spell ruin for the company.
“Even though insurance would protect us from a lawsuit,” said
Baier, “we would still have to close our doors. A claim like that
would make it nearly impossible to find coverage.”
For David Blaine, director of programming for Mancos-based Deer Hill
Expeditions, the new protection mainly translates into an added sense
of security. “We are relieved to see it pass,” Blaine said,
“but we aren’t going to change any of our programming based
on the outcome of the bill. We will continue to run our courses as safely
as possible, and like always, risk management will be a top priority.”
Outfitters are the most obvious beneficiaries of the new law, but they
are not the only ones. Without protection, many outfitters might eventually
have been forced to limit participation to clients over eighteen years
of age. As a result, many of Colorado’s amazing recreation opportunities
would be lost to a segment of the population that arguably receives the
greatest benefit: minors. Jim Moss, an attorney who specializes in outdoor
law, supports the legislation. “Without the ability of the parent
to waive liability, children’s participation in many outdoor activities
would essentially be done away with. It is an extremely important issue
for children,” he said.
“It really is about options for young people,” said Fitch,
who sends approximately two thousand minors into the backcountry each
year. “I am all for children’s rights and looking out for
the welfare of children, but under the rubric of protecting children,
the old law was actually limiting a child’s opportunities.”
Hansen-Stamp noted that although children can assume risks in certain
cases, they can’t enter into binding contracts to release their
right to sue for negligence — or for anything else. “Recreational
activities are full of inherent risks that can’t be eliminated by
outfitters and those providing recreational opportunities,” she
said. “There is often a gray area between whether injuries result
from inherent risks (no liability) or whether they result from provider
negligence (potential liability). A release, if enforced by the court,
would eliminate this gray area.” Giving parents the ability to release
their minors’ rights to sue means that parents must accept a greater
responsibility for the risks they permit their minors to take. “Parents
should take an active role in researching and choosing responsibly run
programs for their children to participate in,” she said.
Melanie Mills, vice president of public policy at Colorado Ski Country
USA, explained: “If you are unable to use waivers for children,
over time you are going to get this hodgepodge of court decisions on what
recreational providers have to do,” she said. “You are going
to have providers who have insurers saying that they don’t want
children participating in certain activities.” Even in the last
season, Mills reports that some insurers did not want minors participating
in some sorts of competitions. From their perspective, the risk was just
too great.
“This is definitely a good thing for children,” agreed Blaine.
“Eventually it could have reached the point where children couldn’t
do anything that involves risk.”
“I don’t want any kid to die, but I wouldn’t be anywhere
near the person I am today if I didn’t let my parents put me at
risk,” concluded Moss. “Participating in these activities
has shaped a major component of my life.”
The new law allows parents, and only parents or legal guardians, to
sign a liability release for their children. With this in mind, outfitters
must be administratively prepared for the inevitable scenario where a
babysitter or a neighbor comes to registration to sign up a minor. Statute
13-22-107 may be read in full by searching on “253” at the
Colorado General Assembly Website: www.leg.state.co.us/2003a/pubhome.nsf.
*Reprinted with permission: This article
was originally printed in the Summer 2003 issue of the Outdoor Network
Newsletter. It is reprinted here with permission from The Outdoor Network.
Originally published in the 2003 Fall issue
of The CampLine.
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