State Parental Waiver Law Summarized — Part VIII


By Doyice Cotten

9523560519_187eb17629_zThis is the eighth of an eight-part series on the enforcement of parental waivers.

As you should have surmised from the previous posts, parental waiver law varies by state. One law that remains the same in all states is that a contract signed only by the minor is unenforceable and non-binding, with a few possible exceptions (e.g., for necessities, when emancipated, when approved by the court).

I mentioned in an earlier post that prior to 1990, no courts had enforced parental waivers. The philosophy was that the minor should be protected, that is, not dependent upon the parent or guardian making wise decisions for him or her. That is still the philosophy in many, and possibly the majority of, states. However, it seems obvious that the trend is to grant the parent or guardian authority to sign waivers of liability on behalf of the youngster.

Both sides, those for parental waivers and those against, have good arguments. The complete arguments are too long to be reported here. Pertinent sections of each are shown below:

Against Enforcement of Parental Waivers

From Hawkins v. Peart, Utah, 2001:

Having thus agreed with Scott’s premise that a parent may not unilaterally release a child’s claims after a child’s injury, we also agree with Scott’s conclusion that a parent does not have the authority to release a child’s claims before an injury. As in Scott, we see little reason to base the validity of a parent’s contractual release of a minor’s claim on the timing of an injury. Indeed, the law generally treats preinjury releases or indemnity provisions with greater suspicion than postinjury releases. An exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, however, relates to negligence that has already taken place and is subject to measurable damages. Such releases involve actual negotiations concerning ascertained rights and liabilities. Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario. We therefore adopt the majority posture on this question and affirm the district court.

The judge also quoted the New York Court of Appeals:

[W]e are extremely wary of a transaction that puts parent and child at cross- purposes and … tends to quiet the legitimate complaint of the minor child. Generally, we may regard the parent’s contract of indemnity … as an instrument that motivates him to discourage the proper prosecution of the infant’s claim…. The end result is either the outright thwarting of our protective policy, or, should the infant ultimately elect to ignore the settlement and to press his claim, disharmony within the family unit. Whatever the outcome, the policy of the State suffers.

Support of Enforcement of Parental Waivers

From Zivich v. Mentor Soccer Club, Ohio, 1998:

Therefore, we conclude that although Bryan, like many children before him, gave up his right to sue for the negligent acts of others, the public as a whole received the benefit of these exculpatory agreements.   Because of this agreement, the Club was able to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigation.   Bryan’s parents agreed to shoulder the risk.   Public policy does not forbid such an agreement.   In fact, public policy supports it. Accordingly, we believe that public policy justifies giving parents authority to enter into these types of binding agreements on behalf of their minor children.   We also believe that the enforcement of these agreements may well promote more active involvement by participants and their families, which, in turn, promotes the overall quality and safety of these activities.

Tables Summarizing the Likelihood of Enforcement

Table 1 lists the states whose courts would be least likely to enforce parental waivers. Table 2 lists the states in which courts would be most likely to enforce these (well-written) waivers. Keep in mind, however, much depends on the facts of the case and upon the language used in the waiver.

Minor T1

Minor T2

Note: Florida appears in both tables; this is not a mistake. Courts in Florida do not enforce parental waivers relied on by commercial entities, but they do enforce parental waivers utilized by non-profit entities.

Also, remember that waiver law, like all law, is subject to change; what is true today may not be true tomorrow. And if your state falls in that list of least likely states, bear in mind that if this article had been written in 1990, the list of states enforcing parental waivers would be “California.” As the makeup of a state’s courts change, the ruling of some of the courts may change; also, check back to Part II of this series for more courts and states that are subject to change.

For more information on this subject, you might was to purchase a copy of Waivers & Releases of Liability, 9th ed. By D.J. Cotten and M.B. Cotten. It is available from the authors for $59 plus $7 shipping. Its 240 pages include detailed discussion of waivers, step by step instructions for writing waivers, waiver law for each state (adults and minors), and much more.

Photo Credit: Thanks to Verse Photography in Flickr.