Injured Children and the Law of Massachusetts

In a recent blog post, I spoke about children and the law of liability when children engage in youth activities. I’d like to develop that principle a little further and today talk about a very important decision of the highest court of Massachusetts. It was Sharon v. The City of Newton, 437 Mass. 99 (2002). The young woman there was a cheerleader and she got hurt in an after-school cheerleading practice. She sued the city of Newton when she came of majority age. There are a couple of things to consider here. I think they are relevant to claims that are often brought on behalf of children.

The first is that the father of Ms. Sharon signed a release as a condition of his daughter’s participation in the after-school activity. The court, the Supreme Judicial Court, considered whether a parent could release the rights of a child. Traditionally, in what we call common law, the Supreme Judicial Court noted that those releases were unenforceable against a minor, thereby allowing the minor to sue. But here the highest court of Massachusetts said otherwise. In fact, the parent, the father, could indeed “contract out” the right of his daughter to sue. The SJC felt that requiring releases as a condition of voluntary participation in extracurricular sports activities is consistent with, and furthers, the public policy of encouraging athletic programs for the youth of Massachusetts. Therefore, the court is looking at what it feels is an important public policy. Having orderly, cost-effective programs that are run for our youth is a societal benefit, if maintained. If it means that negligent suits cannot be brought, that is the trade-off. This decision was not heralded by plaintiff lawyers, as you can imagine, because it curtailed the rights of people, vulnerable people. We are talking about minors who typically do not make decisions for themselves. Keep in mind that a suit can still be brought for gross negligence as those are not contracted out by the release.

The other item that I want to bring to your attention is that the SJC asked if this will remove any incentive on the part of cities and towns to act in a careful manner. They answered that question with an emphatic “no”. The Court reasoned that pressure from the city or town and the public’s governing through the electoral process exerts a positive influence.

I also looked at statutes (as opposed to court cases) in Massachusetts which involve activities in which children are involved: exempted from negligence are municipalities who own land, people who permit recreation on their land, non-profit organizations and voluntary managers and coaches. These entities often involve sports programs for children under eighteen.

As you can tell, so much of law involves balancing. Here, these activities are believed to offer a societal benefit, as the court explicitly said in Sharon v. City of Newton. To facilitate that, the Courts are willing, as is the legislature, to make it harder, though not impossible, to bring a successful action. The higher bar of gross negligence has to be met. Facts can support that difficult standard but much work needs to be done to reach that level. Having brought several such cases, I can say that they are litigated aggressively and despite it being an onerous task, under the right facts, it is something to pursue.

Those facts will have to be established in the discovery process, something that is so much a part of our civil cases. In particular, depositions of witnesses will have to be done, those of coaches, other participants (which means other young players), athletic directors, and certainly those of the injured child’s parents. All of this would be necessary to establish negligence if that were the standard; since the standard is in fact gross negligence, this information will be no less important, and even more important, to ascertain.