A disturbing article in the NY Times by Daniel Akst:
In order for one of my boys to play indoor lacrosse this winter, I was asked to sign a release indemnifying the sports dome and a long list of its business associates, volunteers, advertisers and (presumably) their family pets against any possible claim filed on behalf of my son.
One-sided legal releases are part of modern life, but these ubiquitous documents often contain little-noticed indemnification clauses — legal provisos requiring consumers to protect a business or some other party from damage claims and legal fees, sometimes even those arising from their own negligence.
Basically, they make every one of us an insurer. Indemnification clauses have been a pernicious feature of freelance writing contracts for years. As a result, threadbare scribes ludicrously agree to protect giant publishing conglomerates not only against judgments, but against the ruinous cost of defending even the most far-fetched legal claims.
Clauses like this often are tucked into the fine print nobody reads when clicking around the Internet or otherwise doing daily business.
Demands for indemnification don’t just come from businesses. One parent (who asked not to be named) had to sign a form indemnifying the Girl Scouts of Northern California so that her daughter could take part in a ropes course high off the ground. The mother might not want to bother seeking help from the California Department of Consumer Affairs, since its Web site requires users to indemnify the agency (and the usual list of hangers-on) “against all claims and expenses, including attorneys’ fees.”
Of course, the parent didn’t have to sign, but she also didn’t want her daughter left out.
I’ve faced the same choice — give up my rights or keep my kids home. In order for my son to attend a summer program at the Simon’s Rock campus of Bard College, for example, I agreed to release the institution, its trustees and (as far as I can tell) all their Facebook friends from any liability and to “fully and forever agree to indemnify” them in case of any claims arising from my son’s stay.
So I’m a regular Lloyd’s of London. Yet regulation of my role as an all-purpose insurer is scandalously lax. I haven’t heard a peep from my state’s insurance regulator, for instance; evidently this official is blithely uninterested in just how much capital I’ve set aside — hang on while I go through the sofa cushions for change — to cover the vast potential liabilities lurking on our family’s balance sheet.
IT’S bad enough that everywhere I go, someone wants me to promise not to sue. I was once asked to sign a release as a houseguest in a private home! And to some extent, I’m sympathetic; it’s stressful and expensive to live in such a litigious society. But it’s ridiculous to demand that every Tom, Dick and Mary assume a liability that can only properly rest with those who bear responsibility. And it’s a perversion of the tort system, which is supposed to put the onus on the parties most able to make sure things are done right. Leaving aside the adequacy of my loss reserves, are these indemnifications legally enforceable? It depends how far they go and which state you’re in.
A Federal law could put a stop this insanity.