The indoor playground—a climate controlled nirvana in the Texas summer. I recently took my four kids to a new one at our local mall. Before their fun and my break time could start, I had to sign FOR EACH KID a three page, single space, in triplicate liability waiver and release. This was in addition to the $12 per kid admission fee (a subject for another post). With my four year old screaming “Mommy I play now you promise” and the teenage attendant screaming at my other three kids who had already jumped the fence, I stopped reading and started signing.
Parents do this all the time, signing forms without reading them so their kids can play soccer, go on a field trip, or skydive indoors (yep, that’s a thing in Texas). Don’t feel bad, I do this too and I write and review contracts for a living. I know we’re busy, but are we potentially putting ourselves at financial risk by signing these forms? The answer is yes.
So what is a liability waiver and release? A liability waiver and release, if enforceable, would prevent you from suing the business hosting the activity in the event something goes wrong and your child is injured. Any parent who has ever been in a crowded indoor trampoline park knows how easy it is for kids to be injured. It goes without saying that a serious injury can be catastrophic for a family—physically, emotionally, and financially.
Now that we know what the intent is of the forms we are signing at the indoor playground, are these forms enforceable in Texas? The answer is yes, if they are worded correctly.
While there isn’t a specific Texas law that spells out exactly what needs to be in a liability waiver and release in order for it to be enforceable, Texas courts have held that it must be very specific about who is being released and what activities are the subject of the release, and the release language must be “conspicuous” (all caps, bold and larger size, also know as “screaming text”). So how do you know whether or not the form you are signing is enforceable? Unfortunately the answer is you won’t know until something happens, you sue the business, and a court decides whether or not it is enforceable.
So let’s say you take your child to an indoor playground, you sign a liability waiver and release, something goes wrong, and your child is injured. What happens if you sue the business? If you signed the liability waiver and release and the court determines that it meets the legal requirements, you have given up your right to be compensated by the business for medical bills incurred before your child turns 18. However, under Texas law, the child “owns” the right to recover for their physical pain and limitations and medical bills incurred after they turn 18 and these rights are not affected by an otherwise enforceable liability waiver and release. Is the result different if grandma or a babysitter signed the liability waiver and release instead of you? The answer is Texas is yes. The court is likely to find the liability waiver and release invalid. In other words, in order for the liability waiver and release to be enforceable, the parent or legal guardian of the child needs to sign it.
A few other important points you should keep in mind. Texas law does not allow for the pre-injury waiver and release of claims resulting from intentional torts. If the teenage attendant at the indoor playground shoves your child off of the slide, no liability waiver and release is going to protect the business, no matter how carefully it is worded. Also, the liability waiver and release protects the business, not the parents of another child who injures your child. Finally, and this is really important, if your child is injured, you should always consult with an attorney to see what your options are, regardless of what you may have signed.
Have I scared you away from taking your kids to the next trampoline park birthday party or letting your kid play soccer? I hope not. But I do hope that the next time you are handed one of these forms you understand that it’s not just the entrance fee you are potentially giving up when you sign on the dotted line and initial in 30 places.
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Copyright © 2018 by Siobhán Fitzpatrick Kratovil. All Rights Reserved.