Are your liability releases puny or muscular?

Releases/Waivers of Liability

By Richard Rooney, J.D.

The basics of tort liability

Negligence is a fundamental component of the common law system. Negligence is based upon duties that the law imposes on individuals. Some duties are tied to relationships between individuals–for example, a landlord has certain duties to tenants of his/her property. Additionally, every individual “owes” a general duty to be “reasonably prudent” in his or her actions.

If someone fails to discharge an owed duty and another is harmed as a result, the person owing the duty may be liable for the resulting harm. As an example, if you are cutting down a tree and aren’t careful to make sure nobody is around and part of the tree falls on a passerby, you are liable for the harm the tree caused to that person.

What are releases and why do we need them?

Some activities and locations are inherently risky to people and injury is a foreseeable or even likely consequence. If people had to constantly worry about the looming threat of legal actions, many beneficial experiences couldn’t be organized or promoted. Businesses want some assurances that they are limiting their exposure to lawsuits as they go about their business–particularly in the recreation and fitness business areas.

Thankfully, there are contractual releases of liability for just such activities. Go to any business establishment that sells fitness related services and you will likely be asked to sign such a release.

These agreements are called waivers, releases, or exculpatory agreements. What they actually are is a contract agreeing that the signing party cannot sue for reasons stated in the release in exchange for being allowed to participate in the risky activity.

When are releases valid?

How valid are such agreements? In Michigan, releases will be upheld under most conditions. The courts have reviewed challenges to releases.  In general, as long as the party granting a release has the capacity to enter into a contract, the parties agreed to the release fairly and knowingly and in exchange for some benefit, and the release is clear enough to not mislead the parties, releases have been upheld. So releases that are among adults, and not overreaching, are typically valid.

When releases aren’t valid.

Releases can be broad as long as they are clear enough for the person signing them to know to what they are agreeing. But releases cannot be ambiguous or misleading. And releases that seem to cover “gross negligence” on the part of a party, typically cannot withstand court scrutiny.

Also, because releases are contracts, releases signed on or for minors will generally not be enforceable. Minors lack the legal capacity to contract and parents/guardians lack the legal capacity to completely bind children in their care to contract.

What does this all mean?

To sum things up, in Michigan there are a few things to consider when evaluating a release’s validity:

  • Does the person signing have legal capacity? (Is the person a minor, intoxicated, or incapacitated?) If the person lacks capacity the waiver can be challenged on those grounds.
  • Does the waiver completely cover the subject matter intended? If the waiver is too narrow, it might still leave liability gaps.
  • Is the waiver clear enough for the person signing to understand what he/she is waiving? If the waiver is confusing, ambiguous, or misleading, a court might find it invalid.
  • Should minors or their parents sign waivers notwithstanding their unenforceability? While a parent cannot bind minors to contracts, signing a waiver may dissuade people from bringing a suit. If a minor signs directly, the waiver could be affirmed upon the minor reaching age 18.

Affirmation of a contract can occur by actions, meaning if the minor continued to participate the waiver would become valid. The widest legal cover possible under these circumstances (outside of barring minors from the activity), would be to have both the minor and guardian sign.

 

If you’d like help with releases or other parts of your fitness business or operations, please feel free to contact our firm.  We are conveniently located at 912 Charlevoix Drive, Ste. 120, Grand Ledge MI 48837.  Our telephone number is 517 853-8015.

It’s coming, it is here–the waves of the elderly

Perhaps we become more thoughtful as we age, or at least once we hit our 80s?  We are told that the older part of our population in the USA is among the “fasting growing” and it pays to think about the issues involved.

Having an elder law attorney or firm on your side might be a smart thing to do, and seeing them BEFORE a crisis hits, smarter still.

Here are four links, some more oriented to policy wonks, and one more poignant:

hhttps://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn192.html

http://www.economist.com/news/leaders/21601253-ageing-economy-will-be-slower-and-more-unequal-oneunless-policy-starts-changing-now

https://www.naela.org

http://www.nytimes.com/video/nyregion/100000003814639/on-life-and-death-after-85.html?WT.mc_id=VI-D-E-SOURCEB-AD-VAR-VIDEO-AUG-2015-NA&WT.mc_ev=click&kwp_0=38004&kwp_4=216493&kwp_1=182202

 

Contact our firm if you have questions or concerns, or if we can help.  Call us at 571 853-8015.  Our office is in Grand Ledge but we also, with the proper arrangements, can visit clients in a hospital, nursing home, assisted living center, their home or apartment, or elsewhere.

A hint by SSA at a status conference yesterday-good news for married same sex couples

As you know many federal agencies started to change regulations or rules or procedures after the Windsor case, when the Supreme Court struck down part of DOMA a few years back.
 
The Social Security Administration (SSA) had already been telling couples, at least those married in states that permitted marriage, to apply for benefits if they wished, and even encouraged those wed, but living in “non recognition states” to also at least apply for benefits.  However, it was not certain just how the SSA would treat same sex married couples after the Obergefell case decided late this June.  Reading tea leaves is always a bit dicey, but it looks like good news given a reported status conference in a case yesterday. 
 
According to a press release from Lambda Legal, yesterday: “. . .in a status conference with Lambda Legal in federal court in Chicago, the Department of Justice announced that the Social Security Administration (SSA) will apply the U.S. Supreme Court’s recent landmark marriage ruling retroactively and process pending spousal benefits claims for same-sex couples who lived in states that did not previously recognize their marriages. According to the Department of Justice, the new policy will apply to previously filed claims still pending in the administrative process or litigation. The expected policy change follows the Supreme Court’s June decision striking down marriage bans across the country.”
 
And if you need help figuring out how things like this will affect your own same sex union, married or unmarried, or if you are contemplating a same sex marriage now, feel free to contact us.
Same sex couples should make sure their estate plans are up to date.  But they should also consider various public benefits and entitlements, the way in which they hold property, and so on.  Older GLBT couples who have not married might even want to think about the possibility of Medicaid in their future to help with long term care costs like a nursing home–would an application be easier, or harder, if married?

 

NPR story about POLST and discussion of end of life medical care options

The idea of talking to doctors about the dying process, and your medical wishes, has been discussed before, including these pages, a little more than a month ago.  Typically all adults speak for themselves when it comes to care and medical decisions.

But how informed are these decisions?  And if a person can’t speak and express their own wishes, how can they appoint someone to speak on their behalf?Before a crisis, virtually any Michigan adult can name someone to serve as their patient advocate.  If that hasn’t been done, a trip to probate court is probably going to be required.

But just this week I heard a good article on Public Radio regarding a proposal to pay doctors so they can have a discussion with patients about end of life medical care.  http://www.npr.org/sections/health-shots/2015/08/18/427041879/medicare-says-doctors-should-get-paid-to-discuss-end-of-life-issues

Consider such conversations with family and friends, and make sure you get a designation of patient advocate (think medical power of attorney) in place that suits your needs and desires.  We can help.

Speech and Special Education for Children with ASDs

By Mary Kathryn McKinley

OSEP- The Last to Know?

On July 6 the US Dept. of Education, Office of Special Education Programs (OSEP), sent out a “Dear Colleague Letter” to the States.  They have apparently “received reports that a growing number of children with ASDs (Autism Spectrum Disorders) may not be receiving needed speech and language services.”

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/dclspeechlanguageautism0706153q2015.pdf

Attorneys or advocates who work with families who have children with Autism wonder what took OSEP so long to figure this out.

In many instances of which we are aware, schools do evaluations that demonstrate that a student has a decent vocabulary, or can form words acceptably.  Then schools often use these evaluations as a basis for informing the parents that the student is doing so well that they no longer NEED Speech and Language Services!  How wonderful!  Of course, that way of thinking conveniently misses the boat.

FACT: Most people with autism struggle mightily with communication challenges throughout their lives!  And need professional speech and language services throughout their lives, including at school, to try to strengthen these deficits.

In fact, communication is at the heart of ASDs. The DSM-5 (Diagnostic and Statistical Manual, the “Bible” for defining “mental disorders”) defines ASDs as being characterized by:

  1. Persistent difficulties in the social use of verbal and nonverbal communication as manifested by all of the following:
  2. Deficits in using communication for social purposes, such as greeting and sharing information, in a manner that is appropriate for the social context.
  3. Impairment of the ability to change communication to match context or the needs of the listener, such as speaking differently in a classroom than on the playground, talking differently to a child than to an adult, and avoiding use of overly formal language.
  4. Difficulties following rules for conversation and storytelling, such as taking turns in conversation, rephrasing when misunderstood, and knowing how to use verbal and nonverbal signals to regulate interaction.
  5. Difficulties understanding what is not explicitly stated (e.g., making inferences) and nonliteral or ambiguous meanings of language (e.g., idioms, humor, metaphors, multiple meanings that depend on the context for interpretation).
  6. The deficits result in functional limitations in effective communication, social participation, social relationships, academic achievement, or occupational performance, individually or in combination.”

We advise parents who are told that their kid doesn’t need speech and language services at school to request an Independent Educational Evaluation (IEE), based on a disagreement with the School’s evaluations.  Our office can help parents with this; if the process set forth in IDEA is followed, the school often ends up paying for the evaluation.

Then we advise parents how to get the best evaluation for their child.  The evidence developed through the IEE process can provide powerful support for parents’ position that their child does indeed need Speech and Language Services as part of his or her IEP in order to receive an appropriate education as defined by IDEA.

If you’d like to learn more or if this is an issue you are facing, feel free to contact us.

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