My 6-year-old has been invited to a birthday party at a rock-climbing center,
and my wife and I have been given this form to fill out, which we are
supposed to sign, saying that we
"waive legal rights" to bring legal action against the center
if our child is hurt, even i due to negligence by an employee or due
to defective equipment.

Is this sort of thing legally binding?

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Request for Question Clarification by denco-ga on 21 Oct 2005 18:27 PDT

Howdy paulbloom-ga,

A reminder of the "Important Disclaimer: Answers and comments provided on
Google Answers are general information, and are not intended to substitute
for informed professional medical, psychiatric, psychological, tax, legal,
investment, accounting, or other professional advice."

My reading of the concepts of "unconscionable contracts" would tend to
indicate that, depending on the judge, etc. such a waiver would not be
enforcable.
http://www.lawnerds.com/testyourself/contracts_rules.html

"Procedural unconscionability ...
...
Inequality in Bargaining Power

Evidence of inequality in bargaining power can be shown by ... terms
unreasonably favorable to other party ...
...
Substantive unconscionability may be shown by:

Overly harsh allocation of risks or costs not justified by the
circumstances."


http://www.bankersonline.com/operations/gp_mac.html

"The court gave this definition of "unconscionability": "An
unconscionable contract is one which is so grossly unreasonable
or unconscionable in the light of the mores and business practices 
of the time and place as to be unenforceable according to its
literal terms." ... A contract is unconscionable when there is an
absence of meaningful choice on the part of one of the parties
together with contract terms which are unreasonably favorable to
the other party. These questions are decided on a case-by-case
basis."


http://soba.fortlewis.edu/nao/Business%20Law%20I/CH%20%2021%20organizer.DOC

"Substantive Unconscionability is a defense. Based on unequal
bargaining power. (i.e. One can?t limit consequential or
compensatory damages for personal injury due to negligence."

If the above would do as an answer for you, please tell me so I can
then post it as such.  Thanks!

Looking Forward, denco-ga - Google Answers Researcher

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Clarification of Question by paulbloom-ga on 21 Oct 2005 19:47 PDT

Hi Denco-ga,

I appreciate the quick response, and I understand the general idea of substantive 
unconscionability -- a contract will not be enforced if it's grossly unreasonable. 
But my question still remains; Do you know if agreeing not to sue counts as
an unreasonable -- and hence unenforceable -- condition? 

thanks in advance,

-- Paul Bloom

Maybe it's not worth risking your child's safety.

Hi Nelson-ga,

well, many of these sporting centers (and maybe all that involve
climbing) ask you to
sign such a waiver, so if my kid wants to learn climbing, this is an
issue I have to face.
I'm not actually worried about the center itself, just curious abou
the legal status of the
waiver. 

-- Paul Bloom

Check the 7th amendment, right to a jury trial for civil suits over 20
dollars.  That cannot be signed away, but the judge might instruct a
jury to say ignore all but that contract perhaps.

You can waive the right to a jury trial.

The manner in which a release of this sort would be enforced may
depend upon the laws of the state in which the release is executed and
the activity occurs.

It sounds like an assumption of risk thing that is printed on the back
of baseball or hockey tickets, and those have been upheld, but
probably not all of them.  Another way that you can sign away your
right to sue is by signing a contract that states that in the even of
a dispute, you can't sue but you must submit to binding arbitration. 
Those have been upheld as well, but again probably not all of them.  I
do commend you on reading what you were going to be signing, so few
people don't.

One of the principles that seems to apply here is choice. You have a
choice of not sending your child to this rock climbing center.  It is
not a necessity of life, so I believe this waiver could prevent you
from suing if something did happen.  It's not like the only grocery
store in town is making you sign a waiver to buy milk, this is a
recreational activity with obvious risks.

Paul,
You have touched on "popular" question.  You can find  - or may have
found -  many examples of releases and worse, ones making the person
responsible for any expenses incurred as the result of an accident.
Here are a couple of sites about similar  - but only similar - 
situations since in your example, this is a one-off event with a
private entity.

http://www.law.com/jsp/article.jsp?id=1111572309843
http://csmonitor.com/2002/0312/p11s01-lecl.html

I am no lawyer, but I do agree with Neal:  you can always sue; it is a
question of what the court decides about the the defense's
presentation of the release.
It some places, the interpretation of the law makes a distinction
between "neglect" and "gross neglect" which would apply to supervising
staff and their allowing use of obviously defaulty equipment.

This article may be of interest to you:
http://www.joe.org/joe/1998august/iw2.html
This ins. company site mentions the possibility that in some states a
parent cannot sign away a child's right to sue.
http://www.baylandinsurance.com/waiving.html
Here is such a case in Colorado, which demonstrates that one can sue 
- and be successful:
http://utopia.utexas.edu/explore/equine/cases/release/cooper.htm

Unconscionability seems to be a bit different, the case with the
school. That might also apply, it seems, if one were one presented
with the release at the entrance, but that is not the case here.
The question is how your state's legal system sees this.  At least,
the  Col. case demonstrates that there are courts that protect the
right to sue.

Personally, I feel that a rockclimbing birthday party for 6 year-olds
is inviting trouble  - not of this type -  just more scratches and
bruises than make for a happy party.  I would be interested in knowing
the no. of kids and adults in the party, and also something about the
facility and its staff.
But it is not my party, and I am glad to see that you are not worried
about the center itself.
I hope this has added a bit.
Regards, Myoarin

From a 3rd year law student at a top five ranked law school.  My
answer in a word: yup. In a few words: it depends. You sue in tort
claiming they breached a duty of care to the child which caused an
injury. They file a motion to dismiss based on a supposed waiver of
your right to sue them. Then the judge balances the fact you signed an
agreement with whether public policy would be served by enforcing that
agreement. That's very fact-specific and state law dependent. If the
child falls, cuts her lip, and needs two stiches, maybe they win. If
the wall falls down killing a bunch of kids, you're more likely to
win. FYI, these waivers are intended to prevent litigation, not
usually be a defense in them. Hope this helps.