Before every sports season, parents all across the countries are asked to sign forms holding the sports program in which their child will be participating harmless and releasing the program from liability should he be injured. No ifs ands or buts. The parent or guardian of a child using a program or town’s facilities must sign a waiver. Such forms are typical for all camp programs; sports clinics and sporting events organized by independent groups, such as the baseball, soccer and football organizations using town fields.
When I was asked to sign such forms back when my sons were playing sports, I remember asking their father, a practicing attorney; “Is this truly a binding legal document? What would happen if one of our boys suffered a catastrophic accident as a direct result of the town or school’s negligence and needed medical care for the rest of his life?”
In essence, the forms say that even if the town allows your child to play on unsafe fields or use poorly maintained or unsafe equipment – say, for instance, a soccer goal that isn't properly anchored – and he is injured or killed when the goal falls on top of him, you agree not to sue the town. While the waivers thus insulate program organizers and municipalities from lawsuits if a child gets injured except where in instances of gross negligence, one wonders whether they do so at the expense of protecting children against preventable injuries.
Even though my sons are no longer playing organized sports in the town where they grew up, I remain committed to making youth sports safer, both at the national level in my daytime job for MomsTeam and, in the evening, in my own community, where I recently raised the question of whether liability waivers are binding and enforceable.
The situation that has sparked my concern was a new athletic complex built in my town less than 100 feet from a high-traffic highway (i.e. one with over 50,000 vehicle trips per day). I was concerned because I knew that there was mounting epidemiological evidence establishing a link between vehicular air pollution and adverse effects on the respiratory and cardiovascular health of children. I was concerned because doctors say that the toxins inhaled by children while playing sports – specifically the fine and ultra-fine particulate pollution in car and truck exhaust fumes – are especially dangerous. I was worried that children playing on those fields were being unnecessarily put at risk of severe asthmatic attacks and, in rare cases, sudden cardiac death. I wondered whether liability waiver forms would insulate the town from a lawsuit if, god forbid, a child playing on one of the new fields were to suffer an asthma attack and die.
To get an answer to my question, I called the Massachusetts Interlocal Insurance Association (MIIA), a non-profit organization incorporated by the Massachusetts Municipal Association in 1982 to provide insurance services to cities, towns and other governmental entities in Massachusetts. I was told that municipalities are protected from lawsuits if a guardian has signed a liability waiver under a legal doctrine called sovereign immunity, which limits or eliminates the liability of government entities, even in cases of negligence.
I asked one of the account representatives for the town of Concord if she was aware of the potential liability associated with the new athletic complex. She told me that pollution is everywhere and explained that the town was immune from injury claims. I asked her if the town would be immune if a severely asthmatic child from another town who had not signed a waiver suffered a fatal asthmatic attack while playing on one of the new fields. Suddenly, the account representative was no longer interested in speaking with me.
The account representative’s response – or in this case, lack of response - begs my next question: was the town paying higher insurance premiums to cover the risk associated with building fields so close to a highway? And, if the answer was no, I wondered if the town was protected and ready for any potential liability stemming from such increased risk.
Last week I read an article in the Fort Myers News-Press about a case before the Florida Supreme Court which has put into question the legality of youth sports liability waivers and has some worried that youth sports in the state could be in jeopardy because insurance costs would go up without such waivers. Others say such a ruling would make sports safer because it would increase the program’s incentive to maintain safe fields.
I will continue to follow the case and hope that readers from around the country will weigh in on the issue. I am particularly interested in how your community handles the safety of children of children playing sports on town fields. Does it force people to sign a waiver stating that they will not sue if something goes wrong? Is your community proactive when it comes to sports safety by implementing a risk management program which can help keep insurance premiums under control?
