WAIVERS FOR MINOR PARTICIPANTS: Enforced in the Past but Unlikely in the Future — Part IV


By Doyice Cotten

9523560519_187eb17629_zThis is the fourth of an eight-part series on the enforceability of liability waivers of negligence when the sport or recreation participant is a minor.

Parental waiver law in three states will be addressed in this post. Parental waivers have been enforced by appellate courts on several occasions in the past in two of the states (Connecticut and Wisconsin) and by a U.S. District Court in New York.

New York

The U.S. District Court in New York allowed the enforcement of a waiver in a confusing summer camp case (Walker v. Young Life Saranac Village, 2012). No New York state court has enforced such a waiver before or since the Walker ruling. In view of the fact that several New York state courts have ruled that parental waivers are not enforceable, future enforcement seems unlikely.


At least two Connecticut courts (Fisher v. Rivest, 2002; Saccente v. LaFlamme, 2002) have enforced parental waivers. However, two more recent Connecticut Supreme Court decisions have set standards for the enforcement of any waiver (parental or adult) that are almost impossible to meet. The Hanks v. Powder Ridge Restaurant Corporation (2005) ruling stated that waivers of liability for negligence were not in the public interest and violated Connecticut public policy. Reasons given included:

  • the public expectation in trusting providers to provide a safe ride
  • patrons are placed in the care of the provider
  • the public lacks the knowledge and experience to discern whether an operation is maintained in good condition
  • the waiver would remove an incentive for safe operation
  • the contract is a standardized adhesion contract with no opportunity for bargaining.

The Reardon v. Windswept Farms, LLC (2006) Supreme Court case seemed to apply its ruling to virtually  all recreational activities and added more reasons why such waivers should not be enforced:

  • the public is generally invited to the facility, regardless of ability
  • patrons are under the care of the entity as a result of paying a fee
  • the entity can better insure against loss than the patron
  • the entity had a superior bargaining position
  • the business is suitable for public regulation.

While these rulings have greatly reduced the likelihood of enforcement for recreational waivers, a few waivers have been enforced – one involving one business entity against another and the second involving a horse injured while in the care of a clinic. Neither involved minor participants and the likelihood of future enforcement of parental waivers seems minuscule.


Two Wisconsin court cases (Osborn v. Cascade Mountain, Inc., 2002; Fire Insurance Exchange v. Cincinnati Insurance Company, 2000) both supported parental waivers. Interestingly, however, the Wisconsin Supreme Court has never enforced a sport, fitness, or recreation waiver (parental or adult). In their most recent case the Supreme Court once again refused to enforce such a waiver (Roberts v. T.H.E. Insurance Company, 2016).

The court gave several reasons for its decision:

  • overly broad and all-inclusive. They explained that an agreement cannot be so broad “that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.”  Note the breadth of the underlined language taken from the agreement.

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold [**410]  them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning activities…

  • standard form agreement
  • offered  no opportunity to bargain or negotiate in regard to the exculpatory language in question.
  • the contract served two purposes
  • failed to sufficiently alert the signer of the significance of the agreement.

The court ruled, “As our prior case law demands, we will not uphold a waiver of liability that violates public policy.” So waiver law in Wisconsin remains the same – waivers will be enforced only if they adhere to the criteria specified by the court. The court has not made a clear distinction between parental and adult waivers (Yauger v. Skiing Enterprises, Inc., 1996). In Yauger, the waiver involving a minor participant failed due to ambiguity and other reasons; interestingly, the court made no mention of the fact that the participant was a minor. So, while technically, a parental waiver might be enforceable, future enforcement seems unlikely because few waivers reach the bars set by the Roberts courts and other previous Supreme Court rulings.

 The fifth post, next week, will present three states in which courts have ruled that parental waivers utilized by non-profit entities are enforceable. 

Photo Credit: Thanks to Verse Photography in Flickr.