March 16, 2012 at 6:54 AM ET
If someone handed you a form that said your child might lose the ability "to generally enjoy life", would you sign it? If you are the parent of a child playing sports in school, you probably have already done so.
Parents of school-age kids know too well that life is a steady stream of waiver forms and other kinds of paperwork. Who has time to read all the fine print?
Fortunately, the child of a co-worker did just that recently, and called my attention to the following language on a waiver form sent home by the Seattle School District for prospective track and field athletes.
"I am aware that track & field is a high risk sport … involving many risks of injury," it said. It then delineated a long list of potential horrible outcomes, such as brain damage, blindness, paralysis and, of course, death.
The kicker, however, was the following line: "Competing in track & field may result not only in serious injury but a serious impairment of my future abilities ... generally to enjoy life."
Well, that covers it.
The dad and I had a few laughs about inclusion of such a Draconian phrase, but just for fun, I Googled it and found thousands of school sports waivers that include precisely the same language, like some legalese virus.
Kids in every one of those school districts, and their parents, are being told that playing sports may prevent them from generally enjoying life. This discovery led to much speculation about how far our society has fallen, and about the fine job that lawyers do in ruining the fun of just about everything.
But as with so much that you read in fine print, there is an explanation. Meet the man who essentially invented the legal term "generally to enjoy life": He's a Chicago-based economist named Stan V. Smith.
When someone is injured in a car accident, a workplace mishap or in any other circumstance where blame is assigned by a civil court, you probably know that the defendant must pay for the injured party's medical expenses. And you might know that the defendant could also have to pay for future lost wage potential. But, according to Smith, those injured through negligence -- or worse -- face all sorts of other future life costs. Suppose an avid amateur cello player is hurt in a car accident and is no longer able to play her instrument. She hasn't lost future wages, but something that she loved has been taken from her. To Smith, the way to make that person whole is to compensate her for the lost enjoyment of being an amateur musician. Smith calls this "hedonic damages," named after the Greek word for pleasure.
Smith, as an economist, is constantly honing formulas that lawyers can use to arrive at fair price tags for loss of life enjoyment. There's even something called an LPL, or Lost Pleasure of Life, scale, that Smith helped develop.
While this concept might sound foreign, it's not new, and it’s not really controversial. Smith first provided expert testimony on hedonic damages in a 1985 wrongful deathlawsuit in an Illinois federal court, winning "enjoyment of life" compensation for the victim's family. The decision was not only upheld by an appellate court, the justices singled out his testimony as an "invaluable guide to the jury." Courts around the country have, to varying degrees, been awarding hedonic damages -- sometimes referred to as “LEL damages,” for loss of enjoyment of life -- to plaintiffs ever since.
Ever those trial-lawyer-hating conservatives don’t dispute the concept. In his first opinion as a Supreme Court Justice, Clarence Thomas authored a noncontroversial 9-0 decision granted hedonic damages to a plaintiff who was mistreated in a VA hospital, for example.
When I talked with Smith, he was unaware that his famous phrase had made its way into thousands of school waivers around the country. He had mixed feelings.
"I think it's good that people are recognizing we have a quality of life, and we have to pay attention to that. To the degree that this is raising consciousness about that, it's positive," he said.
Of course, these waivers are not intended as pamphlets for parents and students to learn about their legal rights. They are small print designed by district lawyers with one goal in mind: to shrink the size of any future payout a jury might award an injured student. (Can't you hear it now? "Members of the jury, Johnny and his parents knew that by joining Math Club he might lose enjoyment of life.")
That disturbs Smith.
"This is a cover your butt thing,” he said. “It's a very blunt statement that is ominous and threatening. ... They are shoving it in the parents' faces and implicitly saying, 'Crap happens.' "
Smith thinks such warnings certainly have a place in school waivers. But he wishes they were accompanied by an equally clear statement that districts will work hard to minimize risk and keep kids safe.
"I think it would go a long way if schools or organizations would take responsibility and say, 'We will take precautions and set forth reasonable standards,’" he said. "Wouldn't that be nice to hear the other side of this?"
Theresa Amato, who runs a Website devoted to outing fine print called FairContracts.org, said she's seen similar issues with school districts and other kid-oriented organizations before. They often purchase contract templates from legal form sellers, then have a district lawyer tweak it to suit their needs. That explains why these kinds of contracts are so similar around the country, she said. Also, Amato noted, districts probably feel pressure from insurance companies to include such sweeping language.
She's not concerned about how a parent's signature on such a waiver would impact a jury trial -- entities can't use small print to avoid responsibility for negligence, for example. But she is worried that the language could have a chilling effect on injured parties and prevent them from bringing cases in the first place.
"One parent might say, 'Gee, honey, we signed this paper,' and not sue," she said. "But on its face, that phrase is ridiculous."
Have you been asked to sign a contract or waiver for your kids with absurd language? Enter it below.
*Follow Bob Sullivan on Facebook
*Follow Bob Sullivan on Twitter.