Summer Program Participant’s Injury Claim Barred By Consent And Release Form

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Summer Program Participant’s Injury Claim Barred By Consent And Release Form: Moose v. Tewksbury, Middlesex Super. Ct., C.A. No. 06-04590 (March 23, 2009)

PD&P recently obtained summary judgment in favor of the Town of Tewksbury in a suit brought by a middle school student claiming injury while attending an extracurricular summer program operated by the Town. The parents of the student, a minor, signed a “Consent & Release” form to allow their son to attend the program. The Release stated that it precluded “any and all claims” for injuries arising “directly or indirectly” out of the student’s “participation in the Program.”

On the date of the injury, plaintiff had just finished flying a model airplane in a contest held in the school’s gymnasium. Plaintiff was sitting on nearby bleachers with a fellow student while the remaining participants flew their airplanes. When plaintiff playfully inserted his pinky finger into a hole in an adjustable railing on the bleachers, his friend turned the railing, thus creating a “scissoring” effect between the moving and stationary parts that severed plaintiff’s finger just below the nail bed.

Plaintiff did not contest that the Release was enforceable under Sharon v. City of Newton, 437 Mass. 99 (2002) (enforcing a minor’s release, signed by a parent, so that the minor could participate in extracurricular activities). Instead, plaintiff posited that an issue of material fact existed as to the parties’ intent and the meaning and applicability of the Release. Specifically, plaintiff argued that a jury could find that the Release did not apply because his injury arose out of a property defect and not out of his active participation in the program. The Release was silent regarding property defects.

The Middlesex Superior Court (Walker, J.) agreed with PD &P’s position that the conspicuously broad “any and all” language of the Release, particularly when read in the context of the even more expansive “directly or indirectly” language, rendered plaintiff’s narrow reading of the Release implausible. Finding no genuine issue of material fact, Judge Walker awarded summary judgment and costs to the Town.