By Doyice Cotten
This is the third of an eight-part series on the enforceability of liability waivers of negligence when the sport or recreation participant is a minor.
Statutes Allowing Parental Waivers for Negligence
Three states have statutes that specifically state that parental waivers are enforceable under certain circumstances. These are Alaska, Colorado, and Minnesota.
A.S. 09.65-292  provides the following:
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
C.R.S. 13-22-107  states that the public policy of Colorado provides:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
604.055 WAIVER OF LIABILITY FOR NEGLIGENT CONDUCT. This statue provides for the enforcement of waivers of liability as well as for parental waivers.
Subdivision 1.Certain agreements are void and unenforceable.
An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.
The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from conduct that constitutes ordinary negligence or for risks that are inherent in a particular activity.
Subd. 2.Party or parties.
For the purposes of this section, “party” or “parties” includes a person, agent, servant, or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.
Additionally, Minnesota appellate courts have enforced two parental waivers (Moore v. Minnesota Baseball Instructional School, 2009; Salinger v. Leatherdale, 2012). Both suits involved commercial entities.
Statutes Prohibiting or Limiting Parental Waivers of Negligence
Three states have statutes that prohibit the enforcement of waivers of liability for negligence – two for both adult and parental waivers (Louisiana, Hawaii) and the other (Florida) has a statute pertaining to parental waivers. Notice that the Hawaii and Florida statutes allow waivers of liability for injuries resulting from the inherent risks of the activity.
La. Civ. Code art. 2004 prohibits the enforcement of any waiver of liability for negligence:
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
H.R.S. 663-1.54 Recreational activity liability provides:
(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.
(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:
(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and
(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.
(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:
[Note that what constitutes “recreational activities” is not clearly defined and notice that the statute does allow for the enforcement of waivers of liability for injury caused by the inherent risks of the activity.]
F.S. 744.301  does not allow or prohibit parental waivers of negligence; it provides that a parent/guardian has the right to waive liability for a minor for injuries resulting from the inherent risks of the activity. [Court rulings involving parental waivers of liability will be addressed in a later post.]
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
In addition to specifying the font size and use of uppercase, the statute requires the use of the exact waiver language provided in the statute.
Post IV scheduled for after Thanksgiving will present states that have a history of enforcing parental waivers, but due to state supreme court or other appellate court rulings, their enforcement in the future is doubtful.
Photo Credit: Thanks to Verse Photography in Flickr.