Liability waivers or releases are contracts. In any contract, the parties agree to exchange promises or performance. In a liability waiver contract involving recreational activities, the participant generally agrees, in the event of any future injury, to forgo any negligence claim against the provider of recreational opportunities. In exchange for this promise, the participant receives an opportunity to engage in such recreational or sport activities
Minors generally lack the legal capacity to enter into valid and enforceable contracts. As a result, the law has traditionally allowed children to disaffirm contracts they sign with adults, including waiver contracts, to protect them from their own "improvidence." Moreover, a parent generally does not have the legal authority to waive a child's own future cause of action for personal injuries resulting from the negligence of the provider of recreational services. At least one state court, however, has recognized the public policy benefits derived from allowing children to give up their right to sue for negligence in a liability waiver or release. (See March 1996 P&R, "Liability Waivers and Releases Overview: Can You Say 'Exculpatory Agreement?"' p. 30.) In the case of Hohe v. San Diego School District, 274 Cal.Rptr. 647 (1990), the California appeals court noted that such waivers would avoid the costs of litigation for alleged negligence by volunteers, and thousands of children would benefit from volunteer-sponsored sports and recreational activities. Accordingly, this particular court found that it was not necessarily against public policy to shift the burden of the risk from community volunteers to the participating children and their parents.
Citing Hohe, the Ohio Supreme Court, in the case of Zivich v. Mentor Soccer Club Inc. (1998), No. 97-1128, _ Ohio St.3d _, similarly held "parents have authority to bind their minor children to exculpatory agreements [i.e., liability release or waiver] in favor of volunteers and sponsors of nonprofit sport activities." In so doing, the state supreme court refused to follow the traditional approach that such waivers signed by parents on behalf of their minor children are "invalid on public policy grounds." Only time will tell if other jurisdictions adopt the reasoning of Zivich described below. In the meantime, many jurisdictions have already enacted statutes that provide limited immunity to volunteers. Generally, the immunity provided by these statutes has the same legal effect as a valid and enforceable waiver agreement (i.e., lowering the applicable standard of liability from ordinary negligence to gross negligence or willful/wanton misconduct).
Youth Soccer Release
As a general rule of law, "contracts entered into by a minor, unless for `necessaries,' are voidable by the minor, once the age of majority is reached, or shortly thereafter" (Restatement of the Law 2d, Contracts , Sections 7, 12, and 14, and Comment f to Section 12). However, in upholding a waiver signed by a parent on his or her child's behalf for participation in a nonprofit soccer program run by volunteers, the Ohio Supreme Court, in Zivich, found, "The proper focus is not whether the release violates public policy but rather that public policy itself justifies the enforcement of this agreement." The facts of the case were as follows:
In May 1993, Pamela Zivich registered her 7-year-old son, Bryan Zivich, for soccer with Mentor Soccer Club Inc. ("Club") for the 199-94 season. The Club is a nonprofit organization that provides children in the greater-Mentor area with the opportunity to learn and play soccer. The Club is primarily composed of parents and other volunteers who provide their time and ta ents to help fulfill the Club's mission. The Club's registration form, signed by Ms. Zivich, contained the following language:
"Recognizing the possibility of physical injury associated with soccer and for the Mentor Soccer Club, and the USYSA [United States Youth Soccer Association] accepting the registrant for its soccer programs and activities, I hereby release, discharge and/or otherwise indemnify the Mentor Soccer Club and the USYSA, its affiliated organizations and sponsors, their employees, and associated personnel, including the owners of the fields and facilities utilized by the Soccer Club, against any claim by or on behalf of the registrant as a result of the registrant's participation in the Soccer Club. …