State passes waiver law
Aspen Times Staff Writer
A new law went into effect this month that apparently makes Colorado the first state to allow parents to waive their child’s right to sue if injured while participating in sports or other risky activities.
The law, a direct response to the Colorado Supreme Court’s decision in the case of Aspen Valley Ski and Snowboard Club v. David Cooper, gives parents the legal right to sign waiver forms on behalf of their children.
The high court left many outfitters, sports clubs and other youth organizers feeling legally exposed in June 2002 when it ruled parents did not, under Colorado law at the time, have that right. The decision forced the ski club to settle with Cooper even though his mother had signed a waiver.
But Mark Cole, executive director of the Aspen Valley Ski and Snowboard Club, said the new law is unlikely to affect his organization’s activities or operations.
“I don’t think anything is really different,” he said. “Our first line of defense with this kind of thing is our day-to-day approach on the hill toward risk management.”
He pointed out that the ski club has been operating without the benefit of such a law for decades and that its programs continued last winter despite the ruling.
The Cooper case began in district court in Glenwood Springs during the 1995-96 ski season. David Cooper sued the club and coach John McBride for damages resulting from a training accident that left him blind and forced him to endure years of reconstructive surgery.
Cooper was injured on a super G course set by McBride on Aspen Mountain. Reports at the time indicate that he veered off course and into the trees along the side of the run.
After Cooper filed his complaint, the ski club argued that it should be dismissed because his mother had signed a waiver that released the club and its employees of any legal responsibility for injuries that occurred while training or racing. The state court of appeals agreed, but was eventually overruled by the Supreme Court.
The ruling, which fit in with court decisions in several other states, opened the door for Cooper to proceed with his negligence claim against McBride and the club. The case was finally settled last year.
The Supreme Court ruling did not close the door on a legislative remedy to the waiver question, and Senate Bill 253 was introduced this year to provide that remedy.
It begins “Children of this state should have the maximum opportunity to participate in sporting, recreational, educational and other activities where certain risks may exist.”
It goes on to say that the public, private and nonprofit entities need a “measure of protection against lawsuits” or they might become unwilling to provide those essential activities.
It continues by pointing out that parents make choices on behalf of their children every day that weigh the risks and benefits of participating in a variety of activities, and sports shouldn’t be any different. “So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment and religious education,” the law says.
The second-to-last section of the new law makes its intent clear: “A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.”
But the final section adds a caveat that says parents may not sign away the right to sue if the child is injured as a result of willful, wanton, reckless or grossly negligent acts by the program organizer or employee.
The bill passed easily in both houses of the state Legislature after heavy lobbying from the outdoor recreation industry and youth groups. Both of the state lawmakers who represent the Aspen area, Sen. Lewis Entz, R-Hooper, and Rep. Gregg Rippy, R-Glenwood Springs, were co-sponsors of the bill.
Steve Hopkins, the attorney who represented the ski club in the Cooper case, said a few state courts have come down on the side of a parent’s right to sign such waivers, but Colorado is the first state to write it into law.
“As far as I know, its the first law of its kind in the country,” he said.
[Allyn Harvey’s e-mail address is firstname.lastname@example.org]
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