Lee Roistacher and Kimberly Sullivan are with the law firm Dean Gazzo Roistacher LLP; they can be reached at LRoistacher@deangazzo.com and KSullivan@deangazzo.com

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Youth recreation provides physical, mental, and social benefits.¹ Decades ago, “the principal responsibility for providing the great variety of recreation facilities and services available to the public rested with local governments.”² It is no different today. Through sports leagues, camps, recreation centers, ball fields, courts, and parks, local governments play a large role in providing opportunities for youth recreation.

To ensure they can continue to offer such valuable programs for youth in their communities, local governments should also take steps to minimize potential liability risks associated with youth recreation. This article provides a general overview of one step local governments can take — requiring a liability release for participating in youth recreation. 

Liability releases are not new. Their use has and continues to be widespread in sports and recreation. As one California appellate court keenly observed 25 years ago: “Given the prevalence of releases in sporting and recreational activities, the failure of defendants to utilize releases of liability would be the greater surprise.”³

Liability releases are exculpatory contracts releasing a party from liability and are enforceable unless they are prohibited by statute or impair the public interest.⁴ Releases in the context of recreational sports or exercise facilities generally do not impair the public interest.⁵ As such, “[a] valid release precludes liability for risks of injury within the scope of the release.”⁶

A liability release can be an extremely effective tool to minimize liability exposure for injuries that may occur during youth recreation. Of course, a liability release must be enforceable to be effective. The following suggestions can help ensure the enforceability of liability releases. 

Make sure a liability release is signed by the minor’s parent or guardian

Like any unsigned contract, an unsigned liability release doesn’t do much good. But who should sign? The participant who is most likely a minor? Or the parent/guardian?

Although a minor can enter into a binding contract — including a liability release — the problem with allowing a minor to sign a liability release on their own behalf is that the minor can disaffirm the liability release (and any contract) before reaching 18 or within a reasonable time after turning 18.⁷ Additionally, if the minor passes away, the minor’s heirs or personal representative can void the liability release.⁸ Because of this, at least in California, “[i]t is well established that a parent may execute a release on behalf of his or her child.” The parent or guardian should execute the liability release and not the minor.⁹

Seek legal guidance before using electronic signatures for liability releases

Putting pen to paper to sign a liability release likely still takes place. However, electronic and digital signatures are now commonplace, as are online registration forms. How does this impact the enforceability of a liability release? We could locate no California case law specifically addressing the effect of an electronic or digital signature on a liability release, or where a person might check a box on an online form assenting to the terms of the liability release. 

It is relatively clear that an electronic signature has the same legal effect as a handwritten signature.¹⁰ A contract — such as a liability release — may not be denied legal effect or enforceability solely because it is electronic.¹¹ This rule is straightforward. But unless you know quite a bit about technology, it gets more complicated. 

Under subdivision (h) of Civil Code section 1633.2, an “‘[e]lectronic signature’ means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.”  An “electronic signature” is also a “‘digital signature’ as defined in subdivision (d) of Section 16.5 of the Government Code ….”¹² A “‘[d]igital signature’” under section 16.5 “means an electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature” and “a digital signature is a type of ‘electronic signature’ as defined in subdivision (h) of Section 1633.2 of the Civil Code.”¹³ 

Government Code section 16.5 applies to “any written communication with a public entity … in which a signature is required or used” and establishes that “any party to the communication may affix a signature by use of a digital signature that complies with the requirements of this section.”¹⁴  This would seem to include a liability release. The requirements for a valid “digital signature” are: “(1) It is unique to the person using it; (2) It is capable of verification; (3) It is under the sole control of the person using it; (4) It is linked to data in such a manner that if the data are changed, the digital signature is invalidated; (5) It conforms to regulations adopted by the Secretary of State.”¹⁵

Electronic or digital signatures on liability releases should be valid, subject to meeting the requirements of Government Code section 16.5.¹⁶ Given the absence of any case law dealing with electronic or digitally signed liability releases and the technical nature of the requirements for valid signatures, we suggest obtaining guidance from both legal and technology advisers before using electronic or digital signatures on liability releases (or seek it if they are already being used). 

 Ensure clarity by using easy to understand language 

“The scope of a release is determined by its express language.”¹⁷ In other words, the language of the release controls.

Liability releases are construed against the drafter and “drafting a legally valid release is no easy task.”¹⁸ It can nevertheless be done. A liability release does not need to be perfect. It just needs to be clear, unambiguous, and explicit when expressing the agreement not to hold the released party liable.¹⁹ 

Close attention should be paid to the language of a liability release. It should not contain a lot of legalese. Quite the opposite. A release should be drafted so that an “ordinary person untrained in the law” will know “that the intent and effect of the document is to release” another from liability.²⁰ Nor should the liability release “be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find.”²¹ A liability release should be easy to read (i.e., no super small fonts) and state in clear and uncomplicated language exactly what is being released.

Maintain proper record management     

An executed and enforceable liability release only serves its purpose if it can be presented to a claimant or a court. An executed and enforceable liability release that cannot be located is like having no release at all. Records management thus plays a large part in the ability to effectively minimize or eliminate risks associated with youth recreation through liability releases. Procedures should be put in place to ensure liability releases are retained and easily accessible.  

Liability releases are one tool that local governments can use to minimize the liability risks associated with youth recreational programs. Minimizing liability helps to ensure that local governments can continue offering such beneficial programs to children and teens in their communities for years to come.

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

Footnotes

[1] See California State Parks, The Health and Social Benefits of Recreation, An Element of the California Outdoor Recreation Planning Program, https://www.nps.gov/goga/learn/management/upload/1536_ca-health_benefits_081505-2.pdf 

[2] Thomas Karter, The Development of Organized Recreation in the United States, https://www.ssa.gov/policy/docs/ssb/v20n5/v20n5p8.pdf

[3] Olsen v. Breeze, Inc. (1996) 48 Cal. App. 4th 608, 622.

[4] Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal. App. 4th 631, 637 (Grebing), citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96.

[5] Grebing, at p. 637

[6] “A release of liability for future gross negligence … generally is unenforceable as a matter of public policy.” (Grebing, supra 234 Cal.App.4th at p. 637, citing City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750-751) (City of Santa Barbara).); Gross negligence is “a ‘want of even scant care’ or “an extreme departure from the ordinary standard of conduct.” [Citations.]” (City of Santa Barbara, at p. 754.)

[7] See Family Code §§ 6700, 6710; Holland v. Universal Underwriters Ins. Co. (1969) 270 Cal.App.2d 417, 422 (It is for this reason that “[one] who affirmatively deals with a minor, does so at [one’s] peril.”)

[8] Ibid.   

[9] Aaris v. Las Virgenes Unified Sch. Dist. (1998) 64 Cal. App. 4th 1112, 1120. 

[10] Ruiz v. Moss Bros. Auto Grp., Inc. (2014) 232 Cal. App. 4th 836, 843.); City of Santa Barbara, supra, 41 Cal. 4th at pp. 770-771.

[11]  Civ. Code, § 1633.7, subd. (b).  

[12] Civ. Code, § 1633.2, subd. (h).

[13] Gov. Code, §16.5, subd. (d).

[14] Gov. Code, § 16.5, subd. (a).

[15] Ibid.

[16] See also Civ. Code, § 1633.5, subd. (b).

[17] Cohen v. Five Brooks Stable (2008) 159 Cal. App. 4th 1476, 1485 (Cohen).

[18] Hass v. RhodyCo Prods. (2018) 26 Cal. App. 5th 11, 26.

[19] Ibid.

[20] Cohen, supra, 159 Cal.App.4th at p. 1488.

[21] Leon v. Family Fitness Center (# 107), Inc. (1998) 61 Cal. App. 4th 1227, 1232.