By Doyice Cotten
This is the first of an eight-part series on the enforceability of liability waivers of negligence when the sport or recreation participant is a minor.
It is well-established that a liability waiver will protect sport, recreation, and fitness providers from liability for injury resulting from provider negligence in almost every state when the waiver is well-written, properly administered, and voluntarily signed by an adult participant. Many providers, however, serve minor participants and seek waiver protection in these cases. Most realize that a waiver signed only by a minor participant is not enforceable in a court of law; consequently, the common practice is to have a parent or legal guardian sign the waiver (a parental waiver) on behalf of the minor. Whether such waivers are enforceable, however, depends upon three variables – 1) the state, 2) the activity, and 3) the nature of the provider.
- Courts in 21 states have ruled that parental waivers are not enforceable in their state. In many of these states there is established public policy forbidding such contracts; in others, the court feels that the parent or guardian does not have the right to waive the right of the minor participant to seek redress for injuries caused by the negligence of the provider. In any case, parental waivers are not currently being enforced by the courts. That is not to say that waivers in those states have no value; for instance, they can provide evidence that the parent or guardian was aware of the inherent risks of the activity.
- Legislatures in a number of states have provided for the use of parental waivers when a minor participates. Some of these are limited to participation in only one or two activities (see below). Legislatures in other states have provided broader statutes related to parental waivers. They will be addressed in Part III in two weeks.
Arizona (A.R.S. §12-553 A.2) Equine Activities
Georgia (OCGA §4-12-4) Equine Activities
Hawaii (H.R.S. §663 10.96) Motorsports
Illinois (745 ILCS 47/1-25) Equine Activities
Indiana (I.C. §34-38-3) Automobile and Motorcycle Racing
Kentucky (KRS 247.4027(2)a) Equine Activities
Minnesota (MN ST §604.055) Equine Activities
Utah ( U.C.A. 78B-4-203(2)b) Equine and Livestock Activities
Virginia (VCA §3.2-6202) Equine Activities
- The nature of the provider is sometimes the determining factor as to whether parental waivers are enforceable. Some states distinguish between two types of providers: 1) commercial entities and 2) non-profit entities (community-sponsored recreation, school-supported activities, or such as YMCA, YWCA, etc.). Waivers for non-profit groups are deemed enforceable more often than those for commercial recreation, sports, or fitness entities. Some states, however, allow enforcement of parental waivers by both types of entity.
The post next week in Part II will list the states in which caselaw has not addressed the issue of parental waivers sufficiently to allow a confident prediction of how future courts will rule.
Photo Credit: Thanks to Verse Photography in Flickr.