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.
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. …