By Doyice Cotten
In Kelly v. United States of America (2014), the first parental waiver was enforced in North Carolina by a U.S. District Court. Morgan Kelly, a 15-year-old girl, was a cadet in the JROTC program at her high school. She attended a JROTC orientation visit to a United States Marine Corps Base after one of her parents signed a waiver of liability on her behalf. She was injured and this suit was filed.
The Liability Waiver included the following language:
In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.
Defendant claimed protection based on the waiver and the plaintiff claimed that parental waivers were against public policy in North Carolina. Though liability waivers are generally enforceable under North Carolina law, plaintiff claimed that because plaintiff Morgan Kelly is a minor and has disaffirmed her waiver by filing a complaint, her own waiver is unenforceable under North Carolina law.
The U.S. District Court stated that no North Carolina courts have ruled on whether a liability waiver signed by a parent on behalf of a minor child is enforceable, but added that numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors in the context of litigation filed against schools, municipalities, and clubs providing activities for children.
It went on to say that a JROTC program is in the public’s interest because of the values it instills and the benefits it provides. It pointed out that North Carolina has demonstrated a public interest in the non-commercial provision of educational or recreational activities by enacting statutes such as the recreational use statute. It added that cases from other jurisdictions which have upheld liability waivers such as the one at issue here have concluded that the public is best served when risks or costs of litigation regarding such programs are minimized. Further, courts have also found that such releases serve the public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity. North Carolina courts have recognized a public interest in respecting parents’ authority over certain life decisions for their children.
Plaintiffs argued that JROTC is not a community-based or volunteer-run activity and stress that economic considerations at issue in cases from other jurisdictions are not applicable here because the United States government is self-insured and has waived its immunity. The court was not persuaded.
The court held that the liability waiver states in clear and unambiguous language that it is made “[i]n consideration of the privilege of participating in an organized event in a training area at Camp Lejeune,” and that it serves to waive “any and all rights and claims . . . including those attributable to simple negligence . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me.” Thus, plaintiffs were adequately notified of the wide range of activities at the event.
There were issues involving which parent signed, but the court concluded that the waiver was enforceable and not opposed to North Carolina public policy. Summary judgment was granted.
Photo Credit: Thanks to Arctic Warrior on Flickr.