Revised State Update on Enforcement of Parental Waivers

By Doyice Cotten

 In September, we ran an article showing which states currently enforce parental waivers. The next week we were told of two recent cases dealing with the subject and in the process of searching for them, found a total of three new relevant cases from three separate states – Maryland, Indiana, and Delaware. Two of the courts enforced the waiver while one did not. We have since posted a summary of each case and this post is a revision of the September summary.

 

Footnotes:

[1] A 2008 Florida Supreme Court ruling declared parental waivers by commercial entities unenforceable.

[2] Recent Supreme Court rulings in Connecticut and Wisconsin seem to indicate that any sport- or recreation-related waivers may be unenforceable in those states. At present, the status of parental waivers is uncertain.

[3] 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. Presumably, the waiver could still be used during the trial.

[4] Parental waivers for school- or community-based activities are still enforced by appellate courts in some Florida jurisdictions.

[5] 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.

[6] See the Connecticut footnote above.

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As can be seen from the table, there are now 19 states in which courts have declared parental waivers to be unenforceable (Florida courts have specified that such waivers used by commercial recreation entities are not enforceable).  One can also see that waivers in 14 states are enforcing parental waivers used by Schools and communities, by commercial entities, or by both.

As the number of states enforcing parental waivers from one in the early ‘90’s to 14 now, there seems to be a definite trend toward enforcement. Almost certainly, courts in some of the 19 states in which parental waivers have not been challenged in court (see the table) will enforce these waivers in the future.