Negligence suit beats liability waiver at kids' gym

Stuck in the Middle, 2010
DieselDemon via Flickr CC BY 2.0

A liability waiver at a children's gym cannot block a negligence suit over a five-year-old's broken arm, the Massachusetts Supreme Judicial Court ruled earlier this week.

The ruling is straightforward and on point. What's surprising is that the high court's reversal was needed in the face a of a state law plainly nullifying gym waivers—and that the law exists, in contravention of American law's usual passion to enforce boilerplate.

Ava was five when she broke her arm falling off a beam at The Little Gym of West Boylston, west of Boston. It was Ava's second year at The Little Gym, part of a global network of recreational facilities "dedicated to helping kids build strength and confidence ... one cartwheel at a time." Ava's father had signed a standard waiver, or release—formally, an express assumption of risk—promising not to sue the gym for negligence if there were an accident, the court opinion recounted.

Alas, Massachusetts has a law that says, "No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller ... of the health club services contract any claim or defense arising out of ... the buyer's activities at the health club."

Most of the statute is about consumer protection, limiting the shady contract practices for which gyms were once renowned and still are teased, such as excessively long membership terms and difficult-to-escape automatic renewals. Even the statutory provision here at issue focused on lawsuits about club contracts, before the legislature added the "buyer's activities" phrase in 1985.

The dispute resolved by the high court focused on whether The Little Gym, with its specialized focus on children and services structured in classes, is a "health club" within the meaning of the waiver ban. The statutory definition is broad, comprising businesses offering "instruction, training or assistance in the preservation, maintenance, encouragement or development of physical fitness, conditioning or well being." 

The definition then employs that loathsome legal-ese, "includ[ing], but not limited to," and lists a plethora of examples: "health spas, sports, tennis, racquet ball, platform tennis and health clubs, figure salons, health studios, gymnasiums, weight control centers or studios, martial arts and self-defense schools, or any other similar course of physical training."

"Including, but not limited to" is a safeguard against application of the interpretive canon, expressio unius est exclusio alterius, meaning the specification of some items suggests the intentional exclusion of others. I say "loathsome," because "including" is supposed to indicate non-exhaustiveness by definition. 

But lawyers will lawyer. The Little Gym here tried to differentiate its market niche by pointing to dissimilarities from a conventional adult gym. The court had little difficulty illustrating the controlling commonality of The Little Gym's wellness mission. I was surprised that the lower court had been seduced by the gym's argument.

What surprised me most, though, is the existence of the waiver-nullifying statute. I teach torts in Massachusetts, and, I confess, I did not know about this law.

As it turns out, Massachusetts is not unique, but such laws are rare. A 2019 survey by Dalby Wyant found laws nullifying gym negligence waivers in five other states: Connecticut, Louisiana, Montana, New York, and Virginia. Elsewhere, some states have much more modest limitations, disallowing waiver for gross negligence or recklessness, for example, but allowing waiver for negligence. Poking around online, I found that bills to override gym waivers are popular rallying causes for legislators but rarely pass. Industry advocates such as the Health & Fitness Association research and track such legislation.

The statutory nullification of a waiver, especially one signed by and restricting recovery for an adult, cuts against the American ethos of freedom of contract. Despite consumer frustration with boilerplate, and despite the now-well-known impossibility of reading all of the clickwrap terms and conditions that attach to our every transaction, the overwhelming trend in American law is to favor enforceability. Inroads on the approach are few and far between, and as European-law-driven cookie-notice banners online demonstrate, enhancing the informedness of consumer acquiescence is easier said than done.

Though usually I'm quick to rush to the ramparts for consumers, I find appealing the enforceability of negligence waivers for gyms. The theory of the enforceability of such contracts regardless of subjective consumer understanding, and amid a dearth of market alternatives, is that the freedom to contract allows a business model to thrive without the burden of potential tort liability—if with the tandem drawback that some people will get hurt and have no recourse.

Me at Anytime Fitness, Hong Kong Mong Kok, unsupervised, 2026

RJ Peltz-Steele CC BY-NC-SA 4.0

I'm a member of Anytime Fitness (AF), and I get unabashedly giddy over the 24/7 business model. I can visit AF any time, any day, regardless of whether staff are present. After a long day, or a night class, I don't have to race to the gym before it closes, like I did at the YMCA. Moreover, I use AFs around the country and around the world. A midnight gym visit when my body hasn't adjusted to Hong Kong time can be just the thing.

I've signed a liability waiver at my local AF, in Rhode Island, which presumably controls at all locations—likely including Massachusetts, per choice of law conventions. Yet I've often wondered how AF can exist, legally, and get insurance. I try to imagine how the conversation went down when someone who owned a line of gyms went to general counsel and proposed opening 24/7 with no staff.

If I were counsel, I would have said, You must have lost your mind. Waiver or no waiver, you want to let ordinary, untrained people, the unwashed masses, just walk around with unfettered access to our heavy equipment that is designed specifically to strain their bodies to the breaking point, and with no supervision whatsoever? Ha. Haha. Hahaha. 

Now I find out that AFs operate even in states where those waivers might be nullified by statute. It's enough to make one suspect that what chambers of commerce bemoan as the unbearable weight of an out-of-control tort system is not actually stifling business innovation in America. 

It ought be remembered, surviving a motion to dismiss is still a far cry from winning a negligence suit. At least based on the preliminary factual record as summarized by the court, I'm doubtful that Ava can show negligence by The Little Gym. It seems to me that a kid falling off a beam now and then, even landing the wrong way on an arm, is something that's going to happen at a kids' gym no matter how close the supervision. But we'll see. Ava's attorney lives to rush the ramparts for another day.

The case is Cross v. BeFree Enterprises (Mass. Nov. 10, 2026). Associate Justice Gabrielle R. Wolohojian wrote the unanimous opinion of the court.

See you at the gym. 

Criminal verdict in Mich. school shooting suggests parent vulnerability to civil negligence claims

2018 National School Walkout
Public domain via Rawpixel

The criminal conviction of gun-owning parent Jennifer Crumbley yesterday in the 2021 school shooting in Oxford, Mich., (e.g., USA Today via Courier Journal) got me thinking about parents' exposure to civil liability.

There's no question that parents of a minor-age school shooter can be held liable indirectly for injuries and deaths upon a theory such as negligent storage or entrustment of a firearm. There have been many civil lawsuits arising from school shootings upon analogous negligence theories leveled against school officials, police, gun sellers, and gun manufacturers.

What I do not know is whether there ever has been a civil verdict against a parent. A civil liability theory follows naturally upon a criminal conviction. But criminal prosecution of parents in these cases has been exceedingly rare, Crumbley's being the first such conviction.

Without the beyond-a-reasonable-doubt standard having been proved already in a criminal case, the civil negligence case presents daunting hurdles in duty and proximate causation. It's never easy to hold an earlier-in-time actor liable in negligence for the intentional criminal conduct of a later actor, whom judge and jury are likely to regard as a superseding cause. Such claims are not infrequent, though, and plaintiffs keep bringing them, because intentional criminal actors tend to lack assets that would make a plaintiff whole.

Brendan Pierson for Reuters reported a rundown in 2022 of civil actions in major school shootings: Uvalde, Texas; Columbine, Colo.; Red Lake, Minn.; Blacksburg, Va.; Newtown, Conn.; Parkland, Fla.; and Santa Fe, Texas. Claims that have been resolved so far have ended with settlements or defense verdicts.

Among those cases, Pierson mentioned claims against parents only in the report on the 2018 shooting in Santa Fe, Texas. In 2023, plaintiffs in the Santa Fe case settled with ammunition retailer Luckygunner (AP). The latest report I can find on the case against the parents, from the Daily News of Galveston County, Texas, said in December 2023 that the negligence case against the parents of Dimitrios Pagourtzis remains on the trial court docket.

Please comment here if you know of a civil verdict or settlement against parents in a school shooting case. I would be curious to know also whether homeowner insurers have covered or not covered in such cases.

Lawyers spotlight persecution of profession in Iran

Taymaz Valley via Flickr CC BY 2.0

Yesterday the International Law Section (ILS) of the American Bar Association (ABA) recognized the International Day of the Endangered Lawyer with a spotlight on Iran in a webinar, "Iranian Lawyers: Risking Their Licenses, Their Liberty, and Even Their Very Lives."

U.S. Court of International Trade Judge Delissa Anne Ridgway moderated a discussion with Margaret L. Satterthwaite, NYU law professor and U.N. Special Rapporteur on the Independence of Judges and Lawyers, and Stuart Russell, a Canadian lawyer and co-director of the International Association of People's Lawyers Monitoring Committee on Attacks on Lawyers, based in Bordeaux, France.

To suppress opposition to the ruling regime, especially since the 2009 "Green Movement," the speakers explained, the government of Iran has persecuted lawyers who dare to represent dissenters. Lawyers themselves have been imprisoned, and bar organizations have been disempowered in their regulatory oversight of the profession, Russell reported.

Judge Ridgway lauded a documentary, Nasrin (2020) (IMDb), which is available for $3 on multiple platforms. I'm adding it to my watch list (trailer below). Exemplary of Iranian lawyers' travails, Nasrin Sotoudeh, an activist and advocate for the rights of women and children in Iran and subject of the documentary, has been imprisoned multiple times, sentenced to lashes, and severely beaten. Voice of America reported Sotoudeh's most recent release from prison, on bail, in November 2023.

I note, DW also published a documentary piece on Sotoudeh, Protecting Human Rights in Iran (2023), available on YouTube.

The ABA ILS program was co-sponsored by the Middle East Committee, the International Human Rights Committee, and the Women's Interest Network. I am a member of the ABA ILS Legal Education and Specialist Certification Committee.

While Pope apologizes in Canada, U.S. reckons with legacy of federal Indian boarding schools

Children at Rehoboth Mission School, New Mexico
(from DOI report p. 39, credited: Hartog, C. (1910).
Rehoboth School [Photograph]. Indian mission sketches:
Descriptions and views of Navajo life, the Rehoboth Mission School
and the Stations Tohatchi and Zuni, 22. Gallup, N.M.: The Author.
Hathi Trust Digital Library)

The Pope's visit to Canada to ask forgiveness for the role of the Church has brought the tragedy of Indian boarding schools to light, but coverage has been thin on the U.S. legacy.

In the United States, Indian boarding schools were government policy and attempted a cultural genocide no less shamefully than the Church effort in Canada. This U.S. angle on the story hasn't been mentioned in my evening news the last few nights. But it was explicated by an Interior Department (DOI) report in May just this year and is being addressed in some media outlets (e.g., NPR).

The DOI report is just volume 1 in the ongoing investigation of the Federal Boarding School Initiative, "a comprehensive review of the troubled legacy of federal boarding school policies," launched in June 2021. A transmittal letter at the front of the report explained:

This report shows for the first time that between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states (or then-territories), including 21 schools in Alaska and 7 schools in Hawaii. This report identifies each of those schools by name and location, some of which operated across multiple sites.

This report confirms that the United States directly targeted American Indian, Alaska Native, and Native Hawaiian children in the pursuit of a policy of cultural assimilation that coincided with Indian territorial dispossession. It identifies the Federal Indian boarding schools that were used as a means for these ends, along with at least 53 burial sites for children across this system-with more site discoveries and data expected as we continue our research.

When I say "attempted cultural genocide," or "ethnocide," this isn't just me throwing around woke words. The DOI report detailed official policy dating to President Washington to "subdue[] the Indians" by assimilation, "helping the whites acquire desirable land." An 1803 memo by President Jefferson outlined a plan to relocate native Americans and push them into farming with the express aim that they would thereby fall into debt and have to cede their land. (And, I note, today still our corporate overlords are pushing all of us into asset ownership—homes, cars, cell phones—on the debt model rather than the capital model. You don't have to be native American for the strategy to make the rich richer and you poorer.)

Hundreds of thousands of children were taken from their families and sent to boarding schools often distant from their home communities. That generations of people were so traumatized explains a lot about the fragile social and economic state of reservation communities today.

In military school fashion, the children's every 24 hours in the boarding schools were regimented. Using quotes from contemporary accounts (notes and sources omitted here), the report recounted:

"The children are improved rather in their habits than in what they learn from books." For example, to teach them "obedience and cleanliness, and give[] them a better carriage," Department records detail examples of organizing Indian male children "into companies as soldiers, and the best material selected for sergeants and corporals." "They have been uniformed and drilled in many of the movements of army tactics."

The report explained the means and ends of the boarding schools with revealing perspective:

Systematic identity-alteration methodologies employed by Federal Indian boarding schools included renaming Indian children from Indian names to different English names; cutting the hair of Indian children; requiring the use of military or other standard uniforms as clothes; and discouraging or forbidding ... Indian languages, ... cultural practices, and ... religions. "When first brought in they are a hard-looking set. Their long tangled hair is shorn close, and then they are stripped of their Indian garb thoroughly washed, and clad, in civilized clothing. The metamorphosis is wonderful, and the little savage seems quite proud of his appearance."

"No Indian is spoken[:]" "There is not an Indian pupil whose tuition and maintenance is paid for by the United States Government who is permitted to study any other language than our own vernacular—the language of the greatest, most powerful, and enterprising nationalities beneath the sun."

Then there was enforcement for violating the rules, including the prohibitions on language and religious practice. Whipping was the preferred punishment for attempted runaways.

Indian boarding school rules were often enforced through punishment, including corporal punishment, such as solitary confinement, "flogging, withholding food, ... whipping[,]" and "slapping, or cuffing." At times, rule enforcement was a group experience: "for the first offense, unless a serious one, a reprimand before the school is far better than a dozen whippings, because one can teach the whole school that the offender has done something that is wrong, and they all know it and will remember it, while it is humiliating to the offender and answers better than whipping."

Conditions for even compliant children were less than optimal. Citing prior DOI investigations in 1928 and 1969, the 2022 report stated:

The Department has acknowledged "frankly and unequivocally that the provisions for the care of the Indian children in boarding schools are grossly inadequate." Rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in Indian boarding schools are well-documented.

Moreover, the children's labor was used to operate the schools, for example, the children's clothes were made by female students as part of their vocational training.

Lest the severity of these conditions be confused with mere norms of less gentle times, we might consider that schools, even in the 19th century, rarely had their own graveyards. DOI found 53 burial sites at Indian boarding schools, at least six unmarked.

U.S. Indian boarding schools have been examined thoughtfully in media outlets: The Atlantic, National Geographic (limited free), NPR, N.Y. Times, and Time (paywall).

There are books, too, of course: Ward Churchill's well regarded Kill the Indian, Save the Man (2004); the first-person Pipestone (2010) by Adam Fortunate Eagle; and the documentary compilation Boarding School Seasons (2000) by Brenda J. Child.

There are online resource collections at The National Native American Boarding School Healing Coalition and the Library of Congress.

My favorite media treatment in this area is a 2015 Radiolab segment, rebroadcast in 2018, "Ghosts of Football Past." Follow it up with a compelling reflection by Professor Justin De Leon.

Missionaries kidnapped in Haiti reach freedom, but murky U.S. policy generally fails ransomed abductees

Haitian child in 2012 (photo by Feed My Starving Children CC BY 2.0).

News came last week that the last 12 of 17 Christian missionaries abducted for ransom in Haiti in October either escaped or were released, reports vary, and walked miles to freedom. The circumstances of their liberation raise questions about the ongoing apparent lack of any clear U.S. policy on abductions abroad.

Less well reported than the story of the missionaries, Haitian lawyer and university professor Patrice Dérénoncourt was shot and killed on October 31 by the kidnappers who abducted him in October.  Dérénoncourt taught crimonology and constitutional law in the Economic, Social and Political Sciences Department of the Université Notre-Dame d'Haiti.

Dérénoncourt and the missionaries are typical of the some 800 kidnappings in Haiti just this year. Economic desperation and political turmoil have resulted in flourishing gang violence, and kidnappers seeking ransom have targeted aid workers and the education sector, children included.  Struggling to maintain rule of law, the Haitian government has not been able to get a handle on the problem.  Foreign governments seem either habitually disinterested or similarly impotent.

In the Dérénoncourt case, some of the $900,000 ransom demanded had been paid.  It is unclear whether any ransom was paid for the missionaries.  Representatives of the families and, apparently, the U.S. government through the FBI, were involved in negotiation over kidnappers' outrageous demand for $1 million per person.  Whatever reports are accurate, and whether or not a ransom was paid or the pressure simply became untenable, I find it difficult to believe that the last 12 missionaries surmounted a concerted effort by the kidnappers to keep them.

The Biden Administration was understandably tight-lipped about how it was dealing with the kidnapping crisis while it was going on.  Now that the event is over, it's time for an open conversation about what U.S. policy should be, both with regard to kidnappings and to the social and economic catastrophe unfolding less than 700 miles from Miami.

In the broader picture, U.S. policy on abductions for ransom seems at best inconsistent and at worst incoherent.  In late October, families of Americans still detained abroad, in China, Egypt, Russia, Saudi Arabia, and Venezuela, called on the Biden Administration to do better.  "When we do meet with ... officials," the families wrote, "we feel we are being kept in the dark about what the U.S. government intends to do to free our loved ones."

The murder of an educator such as Dérénoncourt sets back rule of law in Haiti not by just one mind, but by a generation of students he would have taught.  Persistent instability in Haiti meanwhile is contributing to a burgeoning refugee crisis in the Americas and threatens to destabilize democracy in the Caribbean.  Even an isolationist American administration can ignore Haiti for only so long.

Scharf urges rational statutory construction to ease immigration plight of child victims of abuse, neglect

My colleague Irene Scharf published further research into easing immigration hardships for undocumented youth who have been victimized by abuse, abandonment, or neglect.  She explains (footnotes omitted):

In 1990, aiming to ease the difficult situation for undocumented child immigrants who were dependent on juvenile courts for their protection, Congress enacted the Special Immigrant Juvenile provision of the Immigration and Nationality Act, located at 8 U.S.C. § 1101(a)(27)(J) (the provision). In 2008, in an effort to further ease the plight of these young people, it amended the provision to relieve the proof requirement from proving abuse, abandonment, or neglect by both parents to that of one or both parents. Unfortunately, the provision maintains its “two-tier” citizenship system because one of its subsections denies Special Immigrant Juveniles (SIJ) who naturalize the same rights as other citizens possess to petition for their parents to immigrate [8 U.S.C. § 1101(a)(27)(J)(iii)(II)]. In Second Class Citizenship? The Plight of Special Immigrant Juveniles [40 Cardozo L. Rev. 579 (2019)], I concluded that this limitation violates Due Process by creating this two-tier citizenship system. To address this inequity, courts should employ the doctrine of “rational legislating” to interpret this provision in a way that would place SIJs on an equal footing with other citizens. This would more accurately reflect the intent Congress had when it amended the provision in 2008, and permit naturalized SIJs to reunify with their parents.

Professor Scharf in the article further frames the problem in describing its impact on the lives of young people from Guatemala, Honduras, and El Salvador, relating experiences amalgamated from real clients of the immigration law clinic she has supervised for nearly two decades.

The article is Robbing Special Immigrant Juveniles of Their Rights as U.S. Citizens: The Legislative Error in the 2008 TVPRA Amendments, 30 Berkeley La Raza L.J. 41 (2020).

Kids everywhere play

Kids find innocent fun in the toughest of living conditions. It's a reminder that soulful joy doesn't come from worldly things.

In the photo at left, kids in Ganvie Lake Village in Benin wanted to see themselves on the screen of my little camera. Ganvie has an unusual history tied to the Portuguese slave trade; read more at Atlas Obscura. Photo by my traveling mate, Dylan Armstrong. By the way, RI/South Coast US readers, you can catch Beninese world music Grammy winner Angelique Kidjo at The Vets in Providence, R.I., on February 22. Meanwhile watch her fabulous performance on YouTube.

The photos at right and below are from in and around Jamestown, a community in Accra, Ghana. This village was an NAACP stop for the 2019 Year Of Return (WBUR), and its Old Fort is one of the string of forts and castles that memorializes the horrific suffering inflicted on "the slave coast." Two boys I met on the street, one wearing a US Soccer shirt, were experimenting with a kite they had made out of plastic and wood debris and electrical tape. In Jamestown, ever smiling Masha was my tight-gripping companion. Both photos are mine, CC BY-NC-SA 4.0, taken with permission of their subjects.