I am writing a brief involving liability releases and in the course of my research I came upon some interesting case law.
IN THE STATE OF CALIFORNIA
In Hohe v. San Diego School District, 274 Cal. Rptr. 647 (Ct. App. 1990), The California Court of Appeals held that an injured party could not disavow a signed release of liability simply because she was a minor.
Under California law, and thus for events in California, together with a well written waiver signed by both parent and minor player, the event organizer could be insulated from liability for contemplated injuries sustained at an airsoft event.
THE PROBLEM IN ARIZONA
Although Arizona oftentimes reads California cases as persuasive, the state of the law and public policy in Arizona precludes this same result.
Arizona law has long looked with disfavor and skepticism on liability releases even for adults. The burden of proof of the viability of the relase is on the event organizer trying to use the release as a shield and the release is very strictly construed against the event organizer.
Although Arizona has yet to consider the exact issue of minors and liability releases at the appeals level, the general public policy here is that minors will be protected from parental actions that foreclose a minor's right to recover in tort against an event organizer [by way of a parentally signed liability release].
A Colorado appeals court has useed the same points of analysis applicable in Arizona in Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002)(en banc), to establish that even a well informed release of liability will not be held valid.
The Court reasoned that because a parent may not release their child's cause of action AFTER an injury, it makes no sense to authorize a parent to release a child's cause of action prior to an injury in the form of a release of liability.
The general result of raising a liability release as a defense in Arizona trial courts today is that the release will not prevent a lawsuit brought by or on behalf of a minor.
For airsoft, or any other sport.
A well written waiver that contains precise education about the specific risks and dangers of the sport and is signed by both parent and minor can still be used to establish a defense based on assumption of the risk, but again its a question of fact that will only be decided by a jury.
And a jury means you just spent a lot of money on defense lawyers.
Food for thought.... flame away....
