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Waivers, injuries and premises liability

Most parents in New York are probably familiar with the forms that they must sign in order for their children to participate in sports or play at a variety of different parks and gyms. These typically state that the company or organization is not liable for any injuries that occur while participating or using equipment or facilities. As The New York Times points out, a close examination of the indemnification clause may lead to some anxiety for the signer. It may appear as if the waiver prevents any lawsuit in the event of an injury. Indeed, parents who sue may face a significant challenge.

According to Cornell University Law School’s Legal Information Institute, negligence may lead to liability. “Reasonable care” are keywords when determining whether the organization may be negligent. Acting with this level of care involves behaving in a way that any reasonable or prudent person would in that particular situation. That means assessing any possible chance that an act or a failure to act would cause harm.

A waiver may contain legal language that defines ways that children may act, and denies responsibility for any harm that occurs because of behaviors that do not meet safety standards, along with other releases of liability. However, the company would still have a duty of care. For example, a failure to maintain equipment or a failure to warn of a particular hazard may be considered a breach of that duty if a child suffers bodily harm as a direct result.

The burden of proof lies with the parent who sues the company. He or she must have evidence that the defendant owed a legal duty, that it was breached, that the child suffered an injury and the breach was the direct cause.

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