By Doyice Cotten
Service providers often ask “Is my waiver still enforceable if a minor lies about his age and signs the waiver?” The answer probably varies considerably depending upon where the incident happens. Remember, waiver law is state law and the law is not the same everywhere. A recent Georgia court provided some evidence regarding the answer to this question – at least for service providers in Georgia.
Adventure Air Sports Kennesaw, LLC (AASK) requires that all participants sign a waiver of liability and minor participants must have his or her parents sign the waiver. If the parent is not with the minor, an employee checks the database to see if the parent has signed a waiver previously. Noah Smith, age 17, executed the waiver in his father’s name without parental consent or knowledge. The employee viewed the father’s driver’s license and surprisingly marked the signature valid. When Noah performed a maneuver on the trampoline, he suffered a spinal cord injury resulting in paralysis.
The trial court granted summary judgment to AASK based on the liability waiver and the plaintiffs appealed (Smith v.Adventure Air Sports Kennesaw, LLC, 2020.
The Smiths argued that the contract is unenforceable because it was executed by a minor. The court disagreed. It stated that generally “the contract of a minor is voidable,” but pointed out that minors may be estopped (barred due to previous actions) “from voiding contracts when those agreements are induced by fraud and deceit, such as when a false representation is made by a minor as to the minor’s age.” The court explained that it saw no real difference between “fraud and deceit” and lying about one’s age. It added that estoppels do not usually apply with minors except when the act is made to deceive of fraud.
The court went on to say that the key question was “whether the minor has arrived at those years of discretion when a fraudulent intent could be reasonably imputed to him.” In other words, did Noah have the “capacity for conceiving or executing a fraudulent intent.” Once the minor has that capacity, the minor can be held responsible for the act. When this is the case – the minor had capacity – it relieves the service provider of the duty to investigate the veracity of the signer’s age. The exception would be if there is some evidence that might cast suspicion on the truthfulness of the representation by the minor.
Interestingly, in Georgia, one may be found guilty of a crime as early as age 13. For civil liability, “infancy is no defense to a tort action so long as the defendant has reached the age of discretion and accountability….”
The plaintiffs argued that the defendant was not diligent in verifying Noah’s age. The court stated that at age 17, Noah certainly had the capacity to conceive and execute a fraudulent intent – thus the trial court did not err in ruling that he could not void the contract due to minor status.
The court upheld the minor’s signature and ruled in favor of AASK. So the waiver of liability by the minor was enforced in this Georgia case. This, however, does not mean all waivers by minors may be enforced! SUPPOSE: Another 17 year-old goes to AASK, looks at the waiver, signs his own name, shows his driver’s license, and the employee does not bother to notice he is a minor. When he suffers injury, what does Georgia law say?
Photo Credit: Thanks to Visit Grand Forks – Northern Air Family Fun Center