Tradition and Trends in Parent/Child Waivers

By Kozlowski, James C. | Parks & Recreation, November 2009 | Go to article overview
Save to active project

Tradition and Trends in Parent/Child Waivers


Kozlowski, James C., Parks & Recreation


STATE COURT OPINIONS AND STATE LAWS cited below are representative of significant differences among jurisdictions regarding the validity of liability waivers in general and parent/child waivers in particular. In the following paragraphs, aspects of waiver validity in 12 jurisdictions are cited in the following order: Utah, Washington, Colorado, Alaska, California, Ohio, Massachusetts, New Jersey, Florida, Michigan, New York, and Virginia.

State court opinions and state laws cited below are representative of significant differences among jurisdictions regarding the validity of liability waivers in general and parent/child waivers in particular. In the following paragraphs, aspects of waiver validity in twelve jurisdictions are cited in the following order: Utah, Washington, Colorado, Alaska, California, Ohio, Massachusetts, New Jersey, Florida, Michigan, New York, and Virginia.

In a valid and enforceable waiver agreement, the participant agrees to forego any future claim for ordinary negligence, but not gross negligence, in exchange for the opportunity to participate. In so doing, the participant effectively consents to carelessness on the part of the provider, but not outrageous misconduct. While ordinary negligence generally includes unreasonable conduct which causes injury, gross negligence and willful/wanton misconduct require evidence of much more egregious behavior which demonstrates an utter disregard for the physical well being of others.

Traditional Rule

Children generally lack the legal capacity to enter into binding contracts, including waiver agreements. Further, in the absence of expressed statutory or judicial authorization to do so, parents traditionally have had no legal authority to waive, release, or compromise claims by or against their child. This general rule applies to a waiver, settlement, or release of the child's right of action for a personal injury. See 67A C. J.S. Parent and Child 114. at 469 (1978).

For example, in Hawkins v. Peart. 37 P.3d 1062 433 (Utah 10/30/2001), a parent signed a waiver on behalf of his minor daughter releasing liability for future negligence concerning horseback riding. The Utah supreme court voided that agreement, noting that "[a] clear majority of courts treating the issue have held that a parent may not release a minor's prospective claim for negligence." Similarly, in Seoir v. Patine West Mountain Resort, 834 P.2d 6 (Wash. 7/30/1992), the Washington state supreme court noted "it is settled law in many jurisdictions that, absent judicial or statutory authority, parents have no authority to release a cause of action belonging to their child."

Numerous cases in other jurisdictions have considered the validity of preinjury releases signed by a parent and concluded that such releases do not bar the child's cause of action for personal injuries. We agree with this view.

Similarly, in the case of Cooper v. Aspen Skiing Company, 48 P.3d 1229 (Colo. 2002), the Colorado state supreme court reiterated this traditional principle, holding "the public policy of Colorado affords minors significant protections that preclude a parent or guardian from releasing a minor's own prospective claim for negligence."

To allow a parent or guardian to execute exculpatory provisions on his minor child's behalf would render meaningless for all practical purposes the special protections historically accorded minors. In the tort context especially, a minor should be afforded protection not only from his own improvident decision to release his possible prospective claims for injury based on another's negligence, but also from unwise decisions made on his behalf by parents who are routinely asked to release their child's claims for liability.

Moreover, the state supreme court noted "[o]ur holding that parents may not release a minor's prospective claim for negligence comports with the vast majority of courts that have decided the issue.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Tradition and Trends in Parent/Child Waivers
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?