It has been bandied about on these forums and others about how much, if any, protection waivers offer the martial arts teacher in the event of an injury resulting from negligence in the dojo. A recent Mass. Supreme Judicial Court case may help answer that question. In other states, your mileage may vary...
The case is MERAV SHARON vs. CITY OF NEWTON
. Click to read the full opinion.
Ms. Sharon was a high school cheerleader in Newton, who during practice fell and broke her arm (requiring surgery). When she turned 18, she sued the city. The court threw the case out on summary judgement. So she appealled, and the SJC ruled in May on her appeal. The SJC ruled that:
"It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense."
In other words, you must PROVE you have a waiver, not make the plaintiff prove that you don't.
"'[i]t is a rule in this Commonwealth that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects.'"
" Massachusetts law favors the enforcement of releases"
"A party may, by agreement, allocate risk and exempt itself from liability that it might subsequently incur as a result of its own negligence"
"'There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.'"
"Whether such contracts be called releases, covenants not to sue, or indemnification agreements, they represent 'a practice our courts have long found acceptable.'"
"'placing the risk of negligently caused injury on a person as a condition of that person's voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of the Commonwealth.'"
The court, with the above language, ruled that releases for voluntary activity are enforceable.
Ms. Sharon also argues that she signed the form under duress, saying that if she didn't, she wouldn't be able to participate in cheerleading. The court decided otherwise, citing a case that said, "'take it or leave it' release as condition of voluntary participation enforceable".
With regards to minors, the court ruled that parents may make such waivers for "voluntary, nonessential activity", but the minors themselves may void this contract when they reach majority.
So if you have adult students who started when they were children, it might be in your best interest to have these students sign the releases again after they turn the age of majority. The one their parents signed when they were kids may not be enforceable after that.
The court also goes on the rule on such things as applicability to non-profits and to school systems.
And while the court is siding with the school and others with regards to voluntary, non-essential participation in events, it leaves open the question of whether releases are enforceable "in the context of a compelled activity or as a condition for the receipt of essential services (e.g., public education, medical attention, housing, public utilities)". But they intimate that these might violate public policy and aren't enforceable.
As long as the release is properly signed, fraud isn't used to secure its execution and the activity covered is "voluntary" "non-essential", you're covered.
Please note, however, that NO RELEASE protects you against willful, wanton, reckless or gross negligence, or reckless or intentional conduct. I'll leave it to the legal eagles to define these terms. But, if you intentially harm a student or act recklessly, you're screwed!
Any questions? Commentary, Al? Norm? Murray?