Connecticut, California, and North Dakota Courts Address Parental Waivers

By Doyice Cotten

Recent 2013 cases in Connecticut, California, and North Dakota have addressed the pool-001question as to whether parents have the authority to sign away the rights of a minor to recover for injury resulting from the negligence of the provider.

California Case

Lotz v. The Claremont Club (2013 Cal. App. Unpub. LEXIS 5748) involved a 10 year-old who was injured in a dodgeball game. It is well established that California law allows the enforcement of parental waivers provided the waiver is unambiguous and meets court requirements. In this case, the father signed a membership agreement and a pre-injury waiver. The trial court upheld the documents in favor of the Club. Neither document informed the parent that dodgeball was to be played. The waiver follows:

The Membership Agreement included a section entitled “Waiver of Liability” that provided in relevant part: “IT IS EXPRESSLY AGREED THAT USE OF THE CLUB FACILITIES, PARTICIPATION IN CLUB-SPONSORED OUTSIDE ACTIVITIES OR EVENTS AND TRANSPORTATION PROVIDED BY THE CLUB SHALL BE UNDERTAKEN BY A MEMBER  [*3] OR GUEST AT HIS/HER SOLE RISK AND THE CLUB SHALL NOT BE LIABLE FOR ANY INJURIES OR ANY DAMAGE TO ANY MEMBER OR GUEST . . . .” The provision further stated that the member voluntarily assumed the risk of personal injury and released the Club and its employees from every demand, claim or liability on account of any personal injury.

On the same day he signed the Membership Agreement, Thomas signed a separate document captioned Waiver of Liability, Assumption of Risk and Indemnity Agreement (Waiver) that contained a provision stating:

“This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club.” The Waiver further provided in part: “I, for myself, my spouse, if any, my heirs, personal representative or assigns, and anyone claiming through or under me do hereby release, waive, discharge, and covenant not to sue The Claremont Club . . . for liability from any and all claims including the negligence of the Claremont Club, resulting in damages or personal injury . . . .” The Waiver further identified certain activities provided at the Club—again excluding dodgeball—together  [*4] with the risks arising therefrom, and required Thomas to assert that his participation was voluntary and “that I knowingly assume all such risks.” The Waiver’s concluding paragraph provided for Thomas’s understanding “THAT I AM GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO SUE.”

Negligence and gross negligence were alleged. Issues included the dodgeball game (against policy, inappropriate rules and space) and negligent hiring, training, and entrusting the employee. The appellate court found the waiver to be ambiguous as to who was covered by the waiver and a conflict between the two documents. There were also triable issues of fact as to whether the club was grossly negligent. Hence, the waiver was not enforced. While the court did not enforce the waiver in this case, it is well-established that California courts do enforce well-written parental waivers.

North Dakota Case

In Hillerson v. Bismarck Public Schools (2013 N.D. LEXIS 183), defendants were sued for damages in a near-drowning accident. The 6 year-old girl’s parents had signed two documents in which they gave permission for the child to participate, assumed responsibility for medical costs, and released the defendants from any liability. Hillerson, as best friend of the plaintiff, sued alleging negligent supervision, failure to provide safe facilities, failing to warn of dangers, and failure to properly train employees. The trial court granted summary judgment based on the waiver.

On appeal, the plaintiff contended the language of the waiver did not release the claim of the child. This was not presented in the trial, so the appellate court could not address the issue. Similarly, the plaintiff failed to allege gross negligence or willful acts in the pleadings, so the appellate court could not address this issue as well. Finally, plaintiff contended that the waiver is ambiguous.

The first document discussed medical expenses followed a sentence involving the release of “any liability.” The court held that it is unclear whether it refers to medical expenses or whether it refers to damages. Other ambiguities included whether “YMCA is not responsible for accidents” refers to torts, medical expenses, or something else.

For these reasons, the court failed to enforce the waiver. The failure of the waiver, however, had nothing to do with the fact that it involved a minor client. The court cited a previous case (Kondrad v. Bismarck Park District) in which a well-written parental waiver was enforced. This case seems to verify that parental waivers are enforced in North Dakota.

Connecticut Case

The parent of a 15 year-old student signed a waiver releasing the school from liability for injury or illness suffered on a trip to China. The girl contracted tick-borne encephalitis and suffered permanent, severe disabilities. The waiver included the following language:

(1) “any and all claims that may arise from any cause whatsoever, whether resulting from acts or omissions of any persons, from the operation or condition of the facilities or premises, from acts of war or terrorism, or from acts of God  [**3] or nature, or risks associated with the consumption of alcoholic beverages, use of illegal drugs in any form and injury or death from causes such as traffic accidents, crime, assault and theft,”

(2) “responsibility for any accident, illness, injury, or any other damage or consequence arising or resulting directly or indirectly from the Student’s participation in the Program,”

(3) “any liability, damage, or injury that may be caused by Student’s negligence or willful acts committed prior to, during or after participation in the Program,” and

(4) “any liability, damage, or injury caused by the intentional or negligent acts or omissions of any other participant in the Program, or caused by any other person.”

This broad definition was subject to one exception; the release waived the school’s liability “except to the extent that the liability, damage, injury, loss, accident or illness is caused by the sole negligence or willful misconduct of the School, its officers, trustees, faculty, employees, agents, or representatives.” Cara and her mother signed the document on March 7, 2007. The school conditioned students’ participation in the Hotchkiss-in-China program on students and parents signing this release of claims.[bold emphasis added]

The court examined the waiver carefully and determined that an average person would not have understood the waiver intended to absolve the school of liability for its careless or negligent acts (or that the school intended to be released from its duty to act with reasonable care). Further, the court felt that the term “sole negligence” would likely be interpreted as the school being “responsible solely for any harm that its negligence caused” rather than being interpreted as the school being liable only if it was 100% responsible for the injury or illness – as the school intended.

The appellate court, consequently, ruled that the release was unenforceable.

The court then went on to add that even if the waiver had been unambiguous, it would still have been void because it was in violation of Connecticut public policy. It discussed previous state Supreme Court rulings that established standards that, in effect, prohibit the enforcement of most recreation/sport liability waivers – whether for adults or minors.

Prior to the Supreme Court rulings, Connecticut courts did enforce parental waivers. At this point, however, it appears that even well-written parental waivers will not be enforced in most cases.


Photo Credit: Thanks to havenholidays at Flickr.