To be an effective “shield” against liability, a release form must be drafted carefully and must be clear, unambiguous, explicit and not violate public policy. Several courts from around the country have discussed the use of release forms and assumption of risk by individuals engaging in these types of activities. Generally, most civil liability suits will be barred by a valid release form, as long as the release form does not controvert public policy in that jurisdiction. There are several uses for these release forms in a farming or land-use context. Many landowners use such forms to protect themselves from liability for paying guests on the property for recreational activities or agritourism. Likewise, schools and daycare centers often use “permission slips” and release forms when school children are taken off of school grounds for “field trips.”
The issue of the liability protection accorded release forms resurfaced in Iowa in a recent case. The Court’s holding negating the liability protection of a release may seem surprising given the wealth of law holding otherwise. But, then again, maybe not.
Under the facts of the case, a parent signed release forms waiving her minor child’s personal injury claims as a condition of the child’s participation in an “educational field trip” to a youth outreach program. The trip was organized by the State of Iowa in conjunction with the University of Northern Iowa (UNI). During the trip, the student was injured when she was struck by a car as she tried to cross the street.
As in all cases involving liability release forms, the language of the form was key to the case. The parent signed two forms: a “Field Trip Permission Form” and a “Release and Medical Authorization Form.” The first form asked the parent to give their permission for her child to attend the program. Most importantly, this form indicated that by signing the parent will not hold the state liable for any “accidents, losses, damages or injuries” resulting from participation in the trip. The child’s mother signed the first form. The second form (medical authorization and release) stated that the state and UNI would be released from all liability and that the parent assumed the risk of their child’s injury (including death) that may result from such an activity. Signing the form also gave consent for medical treatment to program staff. Thus, the staff would have the ability to perform on-site first aid or to hospitalize the student with a licensed physician to secure “proper treatment” if the injuries were extensive. The mother also signed the second form.
After her daughter’s accident, the mother sued the State and UNI alleging negligence. Negligent conduct is not generally covered by a liability release form. A party can’t absolve themselves from their own negligence. A negligence claim doesn’t involve the provisions of the release form, and doesn’t implicate it one way or the other. But, the State and UNI moved for summary judgment based on the signing of the release forms. That’s practically a guaranteed losing move – a negligence claim doesn’t involve the release form. Better to challenge the claim of negligence head-on. In any event, the district court granted summary judgment and the mother asked the Iowa Supreme Court to hear her case. The Court agreed to do so.
The mother made three arguments on appeal, stating that the releases were void and unenforceable. Her first argument was that a majority of other state courts have concluded that it is against public policy for a parent to waive liability for a child’s injury before that injury occurs. Secondly, she argued that it is also against public policy to enforce such releases if the release was signed for the child’s participation in an educational activity. Her third argument was that the releases she signed were “insufficient” to waive the State’s liability because the intent behind the release was “not clearly expressed” in the document. These claims skirted the real issue of the case – whether a party can contract away its own negligence, and baited the Court into delving into the legislative domain of the “public policy” arena. The Court took the bait.
The Court primarily focused on the mother’s argument that pre-injury releases violate public policy. The mother argued that parents are unable to assess the risks to their children before they participate in an activity, because parents are largely uninformed about the “gravity of injuries” their children may face or be exposed to on the field trip. The State argued that pre-injury releases are quite common in Iowa and that public policy requires that courts give “deference to parents’ child-rearing choices.” That’s an interesting argument insomuch as the State, since the late 1970s, has taken precisely the opposite position in other matters involving parental decision-making. But, the State further argued that “a parent’s interest in the care, custody, and control of children is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court.” Again, however, the State did not challenge the negligence claim.
The Court first examined the concept of the “public good” or “public interest” in this case. The Court gave several examples of cases decided on public policy justifications. The doctrine has been used to abolish the doctrine of immunity for charitable institutions in Iowa. Public policy grounds were also discussed in the case of litigation between family members in the context of interspousal immunity. But, the Court did not explain how those situations were similar to the case at bar – an agreement entered into by parties with neither party being compelled to enter into the agreement. However, the Court did state that “the freedom to contract weighs in the balance when public policy grounds are asserted against the enforcement of a contract… .”. But, in spite of the general rule and prior Iowa judicial opinions on the matter, the mother urged the Court to join the majority of other state courts who have concluded that pre-injury releases are invalid based upon a public policy rationale. But, the majority of those cases did not involve a claim of negligence - they involved a frontal assault on the concept of release forms.
The Court never got into the negligence issue (probably because the State failed to challenge the mother’s claim) and concluded that they must protect children from forfeiture of personal injury claims by parents’ execution of pre-injury release forms. The court stated that, “[i]f parents fail to provide for the needs of their injured children, and the pre-injury waiver in favor of the tortfeasor is enforced, financial demands may be made on the public fisc to cover the cost of care.” That’s an interesting statement. It completely ignores the fact that courts have long held that a party cannot contract away damages caused by their own negligence. Once that rule is acknowledged, the Court’s argument is eliminated. But, the Court went on to find that an adult’s signing of a pre-injury release is a harsh consequence for a child if the parent does not read the contract before signing. The Court indicated that this was often the case, citing a case from the Washington Supreme Court where the court noted that it makes little sense for a parent to have the authority to disclaim a child’s pre-injury cause of action when they lack the authority (without prior court approval) to settle their minor child’s personal injury action after the injury has occurred.
The Court went on to opine that “even if a parent exercises reasonable care in investigating the potential risks of injury before signing a waiver” the parent is not usually present during the activity and does not know for certain whether the child will be adequately looked after. Thus, the child’s ability to look after themselves depends on their age, maturity, and the type of activity. Here, the court seems to argue that there are so many factors for a parent to face while signing a release form, they cannot possibly be informed on all of the surrounding circumstances and if they are not present they don’t really know how their child will react to new surroundings. But, again, that whole argument is completely beside the point. If the party acts negligently and causes injury to the child, the liability release form is of no effect.
For all of the above reasons, the majority of the Supreme Court changed course and joined a majority of states who find release forms violate public policy and are unenforceable. Two justices dissented, pointing out that while courts may decide legal issues based on public policy grounds in some instances, this case did not present one of those situations. The dissent said that “public policy is best left to the legislative branch to decide as representatives of the people.” The question of whether these release forms waive legal liability should have been left to the legislature.
The big question here is what schools, daycare centers, agritourism businesses (such as pumpkin patches and apple orchards) will do to protect themselves and their businesses against liability. The State obviously cannot afford to go unprotected. Does this mean that children will not be afforded the ability to venture outside school property to partake in valuable educational experiences? The majority opinion responded to that concern stating that “we find no reason to believe opportunities for recreational, cultural, and educational activities for youths have been significantly compromised…”. Really? What will be the implications for insurance coverage? Certainly, the cost of such activities will go up. That’s the way the market works – an increase in potential liability exposure increases the cost of engaging in the activity. Galloway v. State of Iowa, 790 N.W.2d 252 (Sup. Ct. Iowa, 2010).