As a parent, it seems like every activity that children engage in these days now requires a parent to sign a pre-injury release to waive liability for any injuries to our children during the activity. But, are these releases valid in Washington State? Despite their widespread use, the simple answer is no. A pre-injury release signed by a parent does not release the right of the child to bring a cause of action for negligence if the child is injured during the activity. Such releases may prevent a parent from bring a lawsuit for injury to the parent-child relationship caused by the negligence of another, but the release does not prevent a child’s own personal injury action. Simply stated, a parent does not have the right to release a child’s personal injury action in a pre-injury release. See, e.g., Scott v. Pacific West Mountain Resort, 119 Wn. 2d 484 (1992) (holding pre-injury release did not bar child’s action).
So, if you are the parent of an injured child who signed a pre-injury release, you should recognize that the release does not bar your child from asserting a claim for injuries. On the other hand, if you are a sponsor of such activities for children, do not rely on a pre-injury release signed by a parent to protect your organization. The only way to protect your organization is to buy adequate insurance to cover any injuries to children during the activity.
Outside of the context of children, Washington courts have consistently upheld pre-injury liability releases for adults in the context of high-risk sporting activities, including automobile demolition derbies, scuba diving, and ski jumping. Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981) (mountain climbing); Boyce v. West, 71 Wn. App. 657, 862 P.2d 592 (1993) (scuba diving); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 728 P.2d 617 (1986) (automobile demolition derby); Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (scuba diving), review denied, 84 Wn.2d 1007 (1974); Garretson v. United States, 456 F.2d 1017 (9th Cir. 1972) (ski jumping applying Washington law); Scott, 119 Wn.2d at 493 119 Wn.2d at 493 (adhering to prior law that an adult sports participant can waive liability for another’s negligence.
In other contexts other than high-risk sports, however, Washington courts have often found pre-injury releases for negligence invalid and void as against public policy. McCutcheon v. United Homes Corp., 79 Wn.2d 443, 486 P.2d 1093 (1971) (striking down a landlord’s exculpatory clause relating to common areas in a multifamily dwelling complex); Thomas v. Housing Auth., 71 Wn.2d 69, 426 P.2d 836 (1967) (voiding a lease provision exculpating a public housing authority from liability for negligence); Reeder v. Western Gas & Power Co., 42 Wn.2d 542, 256 P.2d 825 (1953) (finding a contractual limitation on the duty of a gas company against public policy); Sporsem v. First Nat’l Bank, 133 Wash. 199, 233 P. 641 (1925) (holding a bank which rents safety deposit boxes cannot, by contract, exempt itself for liability for negligence).
The bottom line: whether a pre-injury release is valid or not will turn on the context of the release, the type of activity, and who is injured in the activity.