By Doyice J. Cotten
This update is taken from Waivers & Releases of Liability, 8th ed. by Doyice and Mary Cotten. It summarizes the most recent state case law regarding the enforceability of waivers for minors. For those requiring more information, the book has 14 fact-filled pages giving more detail than is possible here.
States that have or do enforce waivers for minor participants
First, waivers signed only by a minor are not enforceable in any state. However, when the waiver is signed by a parent or guardian (Parental Waivers) on behalf of the minor, the situation is a little more complex. At least 12 states have enforced such waivers in at least some circumstances.
Table 1
States Enforcing Parental Waivers
|
Enforces Parental Waivers for: School & Commercial Both Community Recreation Recreation Entities |
|
ND MN CO WI[5] MA OH |
As can be seen in Table 1, the type of entity can be a factor in the enforceability. Some states only enforce school and community recreation related waivers; some have enforced both commercial recreation waivers and school/community waivers; and some have enforced only commercial recreation waivers (in these cases, no school/community waivers have been addressed).
States that have declared parental waivers unenforceable
At this time courts in 18 states have addressed the issue of parental waivers and found them to be unenforceable. These states are listed in Table 2. One point to keep in mind is that a number of these rulings have involved appellate courts; in these cases, the State Supreme Courts have not ruled. Another point to keep in mind is that courts do sometimes reverse previous rulings.
Table 2
States that Do NOT Enforce
Parental Waivers
|
Do Not Enforce |
| AL AR FL[6]HI IA ILLA ME MI
MT NJ PA TN TX UT VA WA WV
|
States that have not addressed the issue of parental waivers
No one can be certain how a court in one of these states will rule when or if a parental waiver is challenged. It would seem logical to expect several of these states to enforce such waivers.
Table 3
States that Have Not Addressed
The Issue of Parental Waivers
|
Insufficient Information to Predict |
|
DE GA ID KS KY MD MO MS NC NE NV NH NM NY OK OR RI SC SD VT WY
|
[1] Recent Supreme Court rulings in Connecticut and Wisconsin seem to indicate that any sport- or recreation-related waivers are unenforceable in those states. (See the appropriate state sections in Chapter 8 for more information.)
[2] A.R.S 12 – 553 A.2 equine statute allows owners to use parental waivers for liability protection; however, the Supreme Court has interpreted the Arizona Constitution to mean that all assumption of risk questions are a matter for the jury and not to be decided by summary judgment. (See the Arizona section in Chapter 8 for more information.)
[3] Parental waivers for school- or community-based activities are still enforced by appellate courts in some Florida jurisdictions.
[4] I.C. 34-28-3 Partial Emancipation for Minors to Participate in Automobile and Motorcycle Racing Act allows waivers and indemnity agreements by certain minors and their parents for participation in professional automobile and motorcycle racing events in Indiana.
[5] See the Connecticut footnote above.
[6] A 2008 Florida Supreme Court ruling declared parental waivers by commercial entities unenforceable.