By Doyice Cotten
Several court rulings as well as a new statute have affected the parental waiver landscape recently. The purpose of this two-part article is to bring you up-to-date on changes in the law. Three states are discussed below and Alabama, Texas, and Pennsylvania will be covered next week. Parental waiver law for all states is covered in depth in Waivers & Releases of Liability, 7th ed.
Iowa
The Iowa Supreme Court has recently clarified parental waiver law in Iowa (Galloway v. State of Iowa, No. 08-0776, Nov. 5, 2010). Fourteen year old Taneia Galloway attended a field trip with her Upward Bound group and was struck by an automobile. Her mother had signed two release agreements. The first gave permission for Taneia to participate in all field trips and included the language “I will not hold the University of Northern Iowa or any of its employees or agents responsible for any accidents ….”
The second agreement stated “In consideration … I hereby assume all risks of her/his injury (including death) that may result from any program activity. As parent/guardian I do herby release and agree to indemnify, defend and hold harmless … from and against all liability including claims and suits … for injury … which may result from any negligence….” The district court held that the release constituted a valid waiver and granted summary judgement.
The Supreme Court presented a good discussion on both sides of the issue and decided that the public policy of the state is to protect children from improvident actions of parents. Hence, it ruled that parental pre-injury waivers are not enforceable. So Iowa now joins the list of states whose courts have held parental waivers to be unenforceable.
Michigan
A Michigan Supreme Court ruling prohibiting the enforcement of parental waivers was reported in a previous posting.
Florida
The Florida Supreme Court has ruled that parental waivers are unenforceable when used by profit-making businesses (Kirton v. Fields, 2008). The ruling left parental waivers used by school and community providers in a sort of limbo.
In 2010, the Florida legislature passed legislation (Florida Statute 744.301(3)) allowing the enforcement of parental waivers releasing their right to recover for injuries caused by the inherent risks of an activity. Many were upset by this legislation, but it really has little effect. IT DOES NOT ALLOW RECOVERY IF THE INJURY IS DUE TO THE NEGLIGENCE OF THE PROVIDER. In most circumstances, the provider is not liable for injuries resulting from the inherent risks anyway. The statute has no effect on the standard of care required of a service provider.
One argument of naysayers is that the parent might sign the waiver without knowing the risks of the activity. Consider two thoughts on this. First, most waivers help to inform the parent of the inherent risks of the activity. Second, if there is no waiver of inherent risks, the provider is still NOT liable for those risks. Those interested or concerned should read the entire statute.