"Claims of gross negligence, reckless, or intentional misconduct are never released in a release/waiver document."
- Rep. McGuire
An Act relating to the right of a parent to waive a child's claim of negligence against a provider of sports or recreational activities.
Children in the State of Alaska should enjoy the maximum opportunity to participate in sports or recreational activities, despite the presence of risk in such activities. Public, private, and nonprofit entities that provide sports or recreational activities to children need and deserve a measure of protection against lawsuits, and without that measure of protection, may be unwilling or unable to provide such activities. Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents are in the best position to determine what is in the best interests of their children. Parents are accustomed to making conscious choices on behalf of their children every day regarding the benefits and risks of various activities available to their children. Such parental choices, when made voluntarily upon consideration of appropriate information, should not be ignored, but rather should be afforded the same dignity and legal effect as other parental choices, including choices regarding education and medical treatment. SSHB 273 furthers these truisms and encourages the availability and affordability of sports and recreational activities to children by recognizing the right of a parent to choose to release, on behalf of his or her child, prospective negligence based claims that the child may accrue against the provider of such activities.
As a result of a recent Colorado Supreme Court case, Cooper v. Aspen Skiing Co., wherein the Court refused to uphold or recognize the mother of a seventeen year old skier's signature on a release document used in a juvenile race camp program, the outdoor industry has been trying to respond to the myriad problems and potentially severe ramifications created by this holding. The faulty rationale behind Colorado and other western states' decisions has been the legal premise that, since a minor is not capable of releasing his or her own rights to sue because a minor is not legally competent to contract and release documents that are contractual in nature, that a parent should not be capable of releasing on behalf of the minor child.
This erroneous rationale is contrary to a body of authority derived from Midwestern and Eastern states, which find that parents do specifically have the legally binding right to sign release documents on behalf of their minor children. In these states, the courts have articulately stated that prohibiting a parent's right to release or waive on behalf of a minor child would detrimentally chill school, scouting, athletic, and similar type programs from being able to offer athletic, recreational, and other extra-curricular programs. There exists a well-settled legal history of recognizing parental rights regarding making decisions on behalf of minor children regarding education and medical treatment. To not extend the same logic to recreational activities in Alaska would be legally illogical and unfair.
The practical consequences of not recognizing this parental authority are profound. If an outdoor recreation company is found to have been operating without a valid release/waiver document, either insurance coverage will not be offered or will be voided. Very few programs will stay in business without proper insurance in place. As an outdoor recreation-oriented and supported state, Alaska simply cannot stand by and watch this type of result. The Alaska Supreme Court has gone in the direction of requiring pre recreational release/waiver documents to be clearly and unambiguously drafted and has expressed concerns over the specificity of the language used in those documents. Given the Court's careful focus on this subject, along with the developing line of authority in the western states, it is important that the legislature address this matter before the court system is called upon to rule on whether it is legal for a parent or legal guardian to sign a release document on behalf of a minor child.
In addition, it is important to note that HB 273 would not defeat in any way a parent or guardian's right to sue an operator that is not providing a safe service or program. An ordinary release/waiver document provides only a release to causes of action sounding in negligence. Claims of gross negligence, reckless, or intentional misconduct are never released in a release/waiver document. It is also crucial to remember that, with respect to pre-recreation releases, these documents regard activities that are totally voluntary in nature; they are activities that regard personal choice for the participant. As such, participants and parents of participants should have the freedom to decide which sports or recreational activities they want to participate in or that they want to have their children participate in and should have the freedom to contract regarding these activities. That fundamental right to make choices regarding a child's activities is what is being protected here; the bill does not negate a parent's rights, it in fact strengthens them.