Sunday, January 13, 2013


My aunt, Margaret Jane Radin, recently published Boilerplate about all those fine-print agreements we sign or click 'I Agree' without ever reading (much less understanding) just what it is we agreeing to. I'm just as guilty as anyone else about not reading them.

But I've started reading them. Today, I was asked to sign one so my three-year-old daughter could attend a friend's birthday party at a local gymnastics studio. Below is part of the boilerplate I was supposed to sign:

"The undersigned agrees to defend, indemnify, and hold harmless XXX, its officers, managers, members, employees, servants, agents and coaches/instructors and their successors and assigns from and against all legal liability, claims, suits, damages, losses, and expenses, including attorneys' fees, threatened or incurred, and arising from the child's participation, or from any cause whatsoever."

First of all, that's a lot of dense language to get through. How are people who have never attended law school supposed to understand exactly what this is saying and what we're agreeing to?  

I think it's basically saying that I can't hold this gymnastics studio responsible for anything might happen to my daughter, even if the staff is negligent. And that even if I threaten to sue them, I will be responsible for paying their attorney. 

So, what if the instructor walks away while my daughter is on the balance beam, and she then falls and breaks her arm? I can't ask the studio to cover medical costs. What if the studio's managers have neglected to maintain the equipment and something breaks while in use, resulting in kids(s) getting hurt. Not their problem, apparently. At least, that's what they're trying to say.

So what's are we supposed to do? I feel like I'm being held hostage. If I balk at the agreement and boycott the business, my daughter can't go to her friend's party. If I sign it, I absolve the business of any responsibility for keeping my daughter safe.

I discussed today's particular release with my aunt, and here are some of her thoughts, which do make me feel better about allowing my children to participate in these kinds of activities. My added comments are in red.
  •  "It used to be that exculpatory clauses (no liability for my own negligence, or worse) were declared by courts to be against public policy and disallowed." Well, that's better. Businesses try to disavow responsibility, but it's not allowed if you get into the court system. 
  • "Now there are some states that allow exculpatory clauses, but for negligence only. So, at worst, the cause couldn't - if you went to court - absolve them of gross negligence or recklessness." So there are some states that are okay with businesses disavowing responsibility, but only up to a point. This is where it becomes apparent that it makes a difference who our judges are.
  •  "Some parents are saying, 'Since you're making me sign away my rights to hold you liable for harming my child, I need to see your safety guidelines and safety records, I need to see the background checks on your employees, I need to see your equipment maintenance records, etc.'" Not a bad idea. Parents really need to start protesting these things and make it known that signing away rights is a huge problem.
  •  "There does seem to be a trend for enforcing [these releases] with regard to negligence, for recreational activities." So more and more cases are allowing releases to stand for negligence, but less so for gross negligence. See this document that outlines cases and trends state-by-state.
  •  "It's still true in some states that these clauses are disfavored, even for simple negligence (such as WI). And in some states, whether or not they're enforceable is a jury question (such as AZ). They the clauses are still completely illegal in CT and LA."