by Doyice Cotten
It is accepted that a well-written waiver, signed by an adult, is enforceable and will protect a provider from liability for injuries resulting from the negligence of the provider in most states. The same is not true, however, when the injured party is a minor.
In general, most types of contracts signed by a minor are not enforceable. For this reason, most sport and recreation providers , in an effort to achieve liability protection from a waiver, require that a parent or legal guardian sign the waiver on behalf of the minor (referred to here as a parental waiver). This strategy will work in a number of states because 1) a few states have statutes that give the right to parents or guardians to make such contracts on behalf of the minor; 2) some state statutes allow parental waivers for a specific sport or activity, for example equine activities; and 3) courts in several states have ruled that waivers signed by parents or guardians are enforceable. So in those states, providers who have suitable waivers can often gain protection from negligence liability even when the injured party is a minor.
The purpose of this post is to provide a list of states in which waivers for minor clients (signed by parent or legal guardian) fall into one of those categories mentioned above. Keep in mind however, that waivers are not always foolproof and that exceptions do arise due to circumstances or due to deficiencies in the waiver language.
States with Broad Statutes Allowing Parental Waivers
States in which Case Law Supports Parental Waivers
California Delaware Florida **
Indiana Massachusetts Maryland
Minnesota North Carolina * North Dakota *
* Has enforced only for non-profits (schools, community recreation)
** Enforces parental waivers for non-profits; does not enforce for commercial.
States with Statutes Allowing Parental Waivers for Specific Activities
Arizona – Equine, Skiing, Motorsports Georgia- Equine
Florida – Motorsports Hawaii – Motorsports
Indiana – Automobile/Motorcycle Racing Illinois – Equine
Kentucky – Equine Michigan – Equine
Minnesota – Equine New York – Skiing
Utah – Equine Virginia – Equine
There are a number of states in which there is insufficient information to determine whether a parental will be enforced. These include Arizona, Georgia, Idaho, Kansas, Missouri, Montana, Nebraska, Nevada, New Mexico, South Carolina, South Dakota, Vermont, and Wyoming. In some of these there have been no case law that addresses the question; in others, court decisions did not indicate clearly whether such waivers were enforceable. Recognize that courts in about half of the states have been quite plain in asserting that parental waivers are not enforceable in their state.
Why the Divide over the Issue?
A major reason that many or most states do not enforce parental waivers is because it is the public policy of the state to protect minors. That protection extends even to protecting them from their parents – or in this case the possible bad judgment of the parents. The minor has the right to redress in the event of an injury caused by another party’s negligence; the parent does not have the right to waive that right of the minor. The minor would be helpless in the event the parent has released the right of redress and the parents do not have funds for medical care.
On the other hand, many argue that the Supreme Court of the United States has stated that parents have a fundamental right to make decisions concerning the upbringing and education of their children. Further, the law generally presumes that fit parents act in the best interests of the child. Another major argument is that liability waivers enable recreational entities, both public and private, to provide more recreational opportunities at a reasonable cost to the public.
Risk Management Take-Away
Sport and recreation providers, both public and private, should learn about the laws in your state. Whether parental or other waivers are enforceable in your state should be something you know. But, the best protection from a lawsuit is a sound risk management program. If nobody gets hurt, guess what? No lawsuit. Make sure you are doing everything possible to prevent injuries. Read about risk management, go to risk management talks, learn all you can and put what you learn into practice.
Photo Credit: thanks to Conor Buckley via Flickr.