05/05/2004 08:24 AM Senate JUD

   CSSSHB 273(JUD)am -PARENTS' WAIVER OF CHILD'S SPORTS CLAIM                                                               
                                                                                                                                
MS.  VANESSA  TONDINI,  staff  to  Representative  Lesil  McGuire,                                                              
sponsor  of HB  273, explained  to members  that this  legislation                                                              
gives the legal  right to a parent  to release a child's  claim of                                                              
negligence  against  a  provider   of  a  sports  or  recreational                                                              
activity. She  recalled at the  last meeting on  this legislation,                                                              
members  raised  very  good  points  about  what  portions  of  an                                                              
activity the waiver should cover. She discussed that issue with                                                                 
committee members' staff and the legislative drafter and                                                                        
explained:                                                                                                                      
                                                                                                                                
     What this bill  does is to give the parent  the right to                                                                   
     sign a waiver  for their child and the specifics  of the                                                                   
     waiver in  this bill  were envisioned to  be left  up to                                                                   
     the  private  parties  contracting.  We didn't  want  to                                                                   
     interfere with  the right of  a private company  or with                                                                   
     an adult  to contract  however they  see fit in  regards                                                                   
     to  what  a   waiver  might  contain.  So   we  sort  of                                                                   
     envisioned,  depending on  the activity,  whether it  be                                                                   
     playing  baseball or  skiing,  the waiver  itself  would                                                                   
     contain  the details  of what was  included, whether  it                                                                   
     be  transportation or  not. This  bill just  says as  an                                                                   
     adult, you can  contract to whatever you want  to - sign                                                                   
     a waiver  releasing  your claim of  negligence, and  you                                                                   
     could also  do the same for  your child. So  that's sort                                                                   
     of  one issue  and  that's what  we  sort of  envisioned                                                                   
     this  bill as doing,  as just  recognizing the  parents'                                                                   
     right to do that.                                                                                                          
                                                                                                                                
     If  we then  wanted to  delineate  what a  company or  a                                                                   
     recreational  provider could waive  - or what  claims of                                                                   
     negligence  would cover  or not, saying  we don't  think                                                                   
     that you should  be able to waive a claim  of negligence                                                                   
     regarding  transportation,  only  the  activity  itself,                                                                   
     then  that would  have to  be - I  don't mean  to say  a                                                                   
     different  bill, but we  just need to  make sure  how we                                                                   
     amend  that.  It  doesn't   say  the  parents  have  the                                                                   
     authority to  waive with regard to participation  in the                                                                   
     activity  but they  don't have  the  authority with  the                                                                   
     ancillary  activities.  So  we wouldn't  be  opposed  to                                                                   
     specifically   laying  out   which  activities  or   the                                                                   
     portions  of the activity  a waiver  would be given  for                                                                   
     or  valid for  but, to  the  extent it  is addressed  in                                                                   
     this bill,  on page 2, line  24, the clause is  added to                                                                   
     the bill  which just  reads, 'to  the extent the  waiver                                                                   
     is  otherwise   valid'.  So  I  believe  this   bill  as                                                                   
     written...says  that a waiver  as it's  drawn up  to fit                                                                   
     that particular  activity and  as the parties  choose to                                                                   
     contract is  valid unless we as a legislature  wanted to                                                                   
     say what  couldn't be included  in that waiver,  such as                                                                   
     transportation or other ancillaries....                                                                                    
                                                                                                                                
CHAIR SEEKINS said that is how he read the bill, to give the                                                                    
parent the right to waive on behalf of the minor child but does                                                                 
not  constrict  the  content  of  the waiver.  He  noted  the  law                                                              
already waives  the sponsor for  gross negligence for  harm caused                                                              
by the inherent  risk of the activity. He asked if  this bill will                                                              
allow a  parent to waive negligence,  but not gross  negligence or                                                              
reckless behavior.                                                                                                              
                                                                                                                                
MS. TONDINI said that is correct.                                                                                               
                                                                                                                                
CHAIR  SEEKINS said  the parent  would have  to determine  exactly                                                              
what  he  or she  is  willing  to  waive  in the  content  of  the                                                              
contract. He  said he  believes parents should  have the  right to                                                              
act on behalf of their minor children.                                                                                          
                                                                                                                                
SENATOR THERRIAULT  referred to the  language on page 2,  line 24,                                                              
and commented that  a subsequent piece of legislation  could carve                                                              
those things out.  He said his concern is that  parents understand                                                              
that some  activities are  inherently dangerous  and would  sign a                                                              
waiver  with that  in  mind but  would not  know  that the  waiver                                                              
applies to everything else.                                                                                                     
                                                                                                                                
CHAIR  SEEKINS suggested  saying in  the bill  that to the  extent                                                              
that the  activities waived  are included in  the waiver  form and                                                              
to  the  extent  the  waiver is  otherwise  valid  so  that  those                                                              
activities  being waived  would be  specified in  the contract  so                                                              
that the parent is aware of exactly what he or she is waiving.                                                                  
                                                                                                                                
SENATOR FRENCH  liked that  idea and  said he  read the  cases Ms.                                                              
Tondini cited at the last meeting. The rule is very strict.                                                                     
                                                                                                                                
TAPE 04-63, SIDE B                                                                                                            
                                                                                                                                
He  explained that  those cases  are always  resolved against  the                                                              
party that is seeking  "to get off the hook." To  be enforced, the                                                              
intent  to  release   a  party  for  future  negligence   must  be                                                              
conspicuously  and unequivocally  expressed.  He  said the  waiver                                                              
must be  broken down  to on-field,  off-field activities,  travel,                                                              
nighttime activities, and etcetera.                                                                                             
                                                                                                                                
CHAIR SEEKINS  proposed a  conceptual amendment  [Amendment  1] to                                                              
insert,  after  the  word  "extent", a  statement  that  says  the                                                              
waived activities  are clearly and conspicuously set  forth in the                                                              
form  of  the  waiver  and  to  the  extent  that  the  waiver  is                                                              
otherwise valid.                                                                                                                
                                                                                                                                
SENATOR FRENCH felt  such language comports with the  cases he has                                                              
read.                                                                                                                           
                                                                                                                                
MS.  TONDINI did  not believe  the  sponsor would  oppose such  an                                                              
amendment as it is within the intent of the legislation.                                                                        
                                                                                                                                
CHAIR SEEKINS  pointed out  that to  be conspicuous, the  language                                                              
would have to be in a different font or bolded to set it off.                                                                   
                                                                                                                                
CHAIR SEEKINS  repeated his proposed  amendment and moved  for its                                                              
adoption.                                                                                                                       
                                                                                                                                
There being no objection, Amendment 1 was adopted.                                                                              
                                                                                                                                
There being  no further discussion,  SENATOR THERRIAULT  moved SCS                                                              
CSHB  273(JUD)   and  its  accompanying  zero  fiscal   note  from                                                              
committee with individual recommendations.                                                                                      
                                                                                                                                
CHAIR  SEEKINS  announced  that   without  objection,  the  motion                                                              
carried.