Every parent and “weekend warrior” knows that you can no longer participate in any organized recreational activity without first being asked to sign a waiver or release.  Many folks assume that these waivers prevent them from pursuing a claim under any circumstances.

However, this past week, a ruling by the Colorado Court of Appeals demonstrated that a waiver will not always protect officials, in this instance an umpire at a little league baseball game, from the consequences of their own wanton disregard for the safety of participants.

During a junior baseball league game, a 10-year-old was hit by a flying baseball bat as he stood in the on-deck circle waiting to bat. The bat shattered five of his permanent teeth and cut his upper lip.  The bat had been thrown an umpire, who was clearing it from the field so a player running from third to home wouldn’t trip over it.

Waiver Cannot Shield Gross Negligence  

The league said neither it nor the umpire had any liability because the father of the injured boy had signed a waiver releasing the league from any claims of negligence or injury to his son.  The district court judge agreed and dismissed the lawsuit before it went to trial.  But the Colorado Court of Appeals reversed the trial judge on Thursday and said the case should proceed to trial, noting that Colorado law specifically says that such waivers don’t exempt those who act in grossly negligent or willful or wanton ways.

The lessons to be learned from the little league case are:

  • Read the language of the waiver carefully and strike out any language you believe to be overreaching or unfair, particularly if it releases the organizing parties from “acts of gross negligence” or “willful and wanton disregard.”
  • If an injury occurs, consider whether it resulted from the negligence of another that would be viewed as unreasonably dangerous – such as throwing a baseball bat into the deck area where ten-year-old players were standing.

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