By Doyice Cotten

Levi Rutherford, a minor and a highly skilled skier, suffered a brain injury when he skied into a patch of thick, wet, machine-made snow and crashed at a ski resort d.b.a. The Canyons. His parents sued alleging negligence and premises liability (Rutherford v. Talisker Canyon Finance Co., LLC, 2019).  Defendants claimed the suit was barred by the waiver signed by Rutherford’s parents and by the Utah ski statute.

Of interest in this post is the Utah Supreme Court ruling as to whether parental waivers are enforceable in Utah. The court cited two previous supreme court decisions on the issue (Hawkins v. Peart, 2001; Penunuri v. Sundance Partners, Ltd., 2013) in which the court held that it would violate public policy to allow a parent to “release a minor’s prospective claim for negligence.”

Rationale

The court began by asserting that the waiver is not enforceable. It noted that “Absent a relevant, contrary expression of intent from the legislature, we adhere to our pronouncement in Hawkins that a parent cannot release his or her minor child’s prospective claims for negligence

It stated that preinjury waivers of liability pit two foundational legal concepts against one another: 1)”the right to order one’s relationship with another by contract” and 2) “the obligation to answer in damages when one injures another by breaching a duty of care.” Hence, the court has stated that “preinjury releases are enforceable unless the party challenging the release establishes an exception to that rule.”

Preinjury waivers are generally governed by contract law and are generally enforceable. Nevertheless, the court advised that there are a number of exceptions. The court has identified exceptions: (1) waivers that offend public policy … (2) waivers for activities that fit within the public interest exception … and (3) waivers that are unclear or ambiguous.  It added that there is also a public interest exception separate from that regarding public policy.

The court, however, has unambiguously held that preinjury parental waivers for negligence violate public policy. The court based its conclusion on a number of observations.

First, Talisker has cited no source of law, and we are aware of none, granting parents in Utah a general[,] unilateral right to compromise or release a child’s existing causes of action without court approval or appointment to that effect.  Quite to the contrary, Utah law provides various checks on parental authority to ensure a child’s interests are protected.  Indeed, [u]nder the Uniform Probate Code, for example, when a minor has a cause of action, the minor or another person interested in the minor’s welfare may petition for the appointment of a conservator.  Significantly, a parent may act as a minor’s conservator, not as a matter of right, but only when appointed by the court.  Furthermore, we see little reason to base the validity of a parent’s contractual release … on the timing of [the] injury. Indeed, the law generally treats preinjury releases … with greater suspicion than postinjury releases.

Talisker argued that the Utah Legislature, by enacting legislation allowing preinjury parental waivers for certain equine and livestock activities, made clear that preinjury waivers signed by parents on behalf of their children do not offend public policy. The court disagreed with Talisker’s logic, clarifying that allowing for an exception in one very narrow area more logically translates into the conclusion that preinjury waivers signed by parents for minors are valid only in the unique context of equine activities.

CONCLUSION

The court affirmed the court of appeals ruling that the waiver is unenforceable. Once again, it seems obvious that in Utah, providers relying on parental waivers for minor participants are at risk and will not be protected by their waiver – the only exception being for equine activities.

Photo Credit: thanks to Owen Richard via Flicka.