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Sharon v. City of Newton6/10/2002
Middlesex.
April 2, 2002
Practice, Civil, Answer, Amendment, Motion to amend. Parent and Child, Education. Release. School and School Committee, Liability for tort. Public Policy. Contract, Minor, Release from liability, Consideration. Negligence, Contractual limitation of liability, School. Massachusetts Tort Claims Act. Governmental Immunity.
In this case, we consider the question of the validity of a release signed by the parent of a minor child for the purpose of permitting her to engage in public school extra-curricular sports activities. The question is one of first impression in the Commonwealth.
A. Background.
On November 8, 1995, sixteen year old Merav Sharon was injured while participating in a cheerleading practice at Newton North High School. Merav fell from a teammate's shoulders while rehearsing a pyramid formation cheer and sustained a serious compound fracture to her left arm that required surgery. At the time of her injury, Merav had had four seasons of cheerleading experience at the high school level.
On November 5, 1998, having reached the age of majority, Merav filed suit against the city of Newton, alleging negligence (Count I) and the negligent hiring and retention of the cheerleading coach (Count II). The city filed its answer on December 24, 1998. In late October, 1999, during the course of discovery, the city came across a document entitled "Parental Consent, Release from Liability and Indemnity Agreement" signed by Merav and her father in August, 1995, approximately three months prior to the injury. The relevant part of the release reads as follows:
" the undersigned [father] . . . of Merav Sharon, a minor, do hereby consent to participation in voluntary athletic programs and do forever RELEASE, acquit, discharge, and covenant to hold harmless the City of Newton . . . from any and all actions, causes of action, claims . . . on account of, or in any way growing out of, directly or indirectly, all known and unknown personal injuries or property damage which may now or hereafter have as the parent . . . of said minor, and also all claims or right of action for damages which said minor has or hereafter may acquire, either before or after has reached majority resulting . . . from participation in the Newton Public Schools Physical Education Department's athletic programs . . . ."
The city filed a motion for summary judgment raising the signed release as a defense.
Merav filed an opposition to the city's motion for summary judgment in which she argued that, because the release had not been raised as an affirmative defense in the city's answer, it should be deemed waived. Shortly thereafter, the city filed a motion to amend its answer in order to add the release as an affirmative defense. One judge in the Superior Court allowed the city's motion to amend on June 30, 2000, and a second judge subsequently allowed the city's motion for summary judgment based on the validity of the release. In her ruling, the judge concluded that " contrary ruling would detrimentally chill a school's ability to offer voluntary athletic and other extra-curricular programs."
Merav filed a timely appeal claiming that (1) the motion judge abused her discretion by allowing the city to amend its answer late; (2) the grant of summary judgment was inappropriate because genuine issues of material fact remained in dispute; and (3) the release signed by Merav and her father was invalid because (a) she disavowed it on attaining her majority; (b) the release violates public policy; (c) the release is contrary to the Massachusetts Tort Claims Act, G. L. c. 258, ยง 2; and (d) the rel
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