Legislature(2003 - 2004)
05/05/2004 08:24 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.