By Doyice Cotten
The Kentucky Supreme Court is the latest court to record an opinion regarding the enforcement parental waivers (a waiver signed by the parent of a child releasing the activity provider from liability for subsequent injury suffered by the child). In this case, the child E.M., the child of Kathy Miller was injured while participating at a trampoline park (IN RE: Kathy Miller v. House of Boom Kentucky, LLC, 2019).
The issue was whether a pre-injury liability waiver signed by a parent on behalf of a minor child is enforceable under Kentucky law. This was an issue of first impression in the Commonwealth of Kentucky. After looking at the rulings in other jurisdictions, the court followed the lead of the majority of jurisdictions and ruled the waiver was not enforceable.
The court stated that
The general common law rule in Kentucky is that “parents ha[ve] no right to compromise or settle” their child’s cause of action as that “right exist[s] in the child alone,” and parents have no right to enter into contracts on behalf of their children absent special circumstances.
The court added that while the mother might enter into a contract regarding her rights, she could not contract away the rights of her daughter. Further, the court made it clear that a parent is not permitted to contractually bind a ward without formal court appointment as guardian.
House of Boom Argument
House of Boom’s initial public policy argument is that a parent’s fundamental liberty interest “in the care and custody of their children” supports enforcing a for-profit entity’s pre-injury liability waiver signed by a parent on behalf of a minor child. The court recognized the parent’s fundamental liberty interest in rearing one’s child, but declared “this right is not absolute, and the Commonwealth may step in as parens patriae to protect the best interests of the child.” House of Boom also argued that “enforcing a waiver signed by a parent on behalf of a child to enter a for-profit trampoline park furthers the public policy of encouraging affordable recreational activities.”
The court agreed that the “Commonwealth has similar public policy to these jurisdictions to encourage wholesome recreation for boys and girls and to limit liability for those volunteering, in a variety of ways, to increase recreational and community activities across the Commonwealth.” It pointed out, however, that these immunities are not available to commercial entities. It stated that “If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.” It added that
A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment.
Conclusion of the Court
Under the common law of this Commonwealth, absent special circumstances, a parent has no authority to enter into contracts on a child’s behalf. Based upon our extensive research and review of the relevant policy in this Commonwealth and the nation as a whole, we find no relevant public policy to justify abrogating the common law to enforce an exculpatory agreement between a for-profit entity and a parent on behalf of her minor child. Simply put, the statutes of the General Assembly and decisions of this Court reflect no public policy shielding the operators of for-profit trampoline parks from liability.
Two conclusions are worthy of note from this case.
- In Kentucky, parental waivers are not enforceable when relied upon by commercial, for-profit entities.
- The court failed to determine if parental waivers used by non-profit entities are enforceable in Kentucky, so the answer to that question will have to wait until another day (or case).
Photo Credit: Thanks to djromanj via Flickr.