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  • Tom Kelliher

Are Pre-Injury Liability Waivers for Minor Children Valid?

The answer, as with many law-related topics, is . . . it depends.

Parents of children involved in sports and recreational activities are often asked by the sponsoring organization to sign releases of liability. These releases (or waivers) are also known as exculpatory covenants. An exculpatory covenant is just a fancy legal term for release or exemption from liability. The release serves to waive any claims arising from the activity in which a child is participating. Not only does the release provide for waiver of the parent’s claims, but for waiver of the children’s claims as well. Most parents hastily sign these releases so their child can participate in a variety of recreational activities: sports, school field trips, martial arts, rock-climbing, kayaking, swimming, trampoline birthday parties, etc. But what are they really agreeing to? More importantly, what does the law allow parents to waive? Unfortunately, state laws vary widely about what parents may waive, especially when it comes to the rights of their children.

It is well-settled that a contract signed exclusively by a minor is voidable by the minor at any time up until he or she reaches the age of majority. Schools and owners of recreational facilities know this and require only a parent’s signature or a parent and a child’s signature. When a parent signs a liability waiver on behalf of a child, it may be enforced against the parent as to his or her own right to sue based on her child’s injuries. However, most courts have ruled that a parent may not sign away her child’s rights to bring a negligence action. The logic behind these decisions is a matter of public policy to protect children–even from their own parent’s actions. Only six states have upheld a waiver signed by a minor and a parent (California, Massachusetts, Florida, North Dakota, Ohio, and Wisconsin). These decisions cite activities deemed nonessential, the understanding of the waiver, and the fundamental right of parents to make decisions for children as reasons for upholding the waivers. Nonetheless, liability will attach in cases involving gross negligence, regardless of whether a liability waiver has been signed and who has signed it.

Massachusetts law favors the enforcement of releases.

In Sharon v. City of Newton, the Supreme Judicial Court upheld a school district’s release of liability signed by a student and her father for cheerleading activities. The student, sixteen year old Merav Sharon, was injured while participating in cheerleading practice and sustained a serious compound fracture to her left arm that required surgery. When she reached the age of majority, she brought actions against the City of Newton, but the Court rejected her negligence claims. In its opinion, the Court noted that cheerleading activities were not deemed to be essential, that Merav and her father had ample time to read and understand the release before signing it, that parents had a fundamental right to waive liability on behalf of their children, and that releases were favored as a matter of law in Massachusetts. Further, the Court also stated that to hold releases invalid in these situations would result in reduced availability of extracurricular sports and programs due to the risks of liability.

Although waivers are sometimes an effective method of shifting liability away from a sponsoring organization, the majority of states hold that such waivers are unenforceable against minors but they may be enforceable against a parent who signs a release. More often than not, a parent who signs a waiver may lose the right to sue a provider for harm suffered by the parent, but a parent's agreement to waive the child's rights will not be enforced. However, based on a wide variety of factors, the laws vary considerably from state to state and, currently, a bright line rule does not exist. Thus, it is important to research the law in your particular state to find out exactly what you and your child are agreeing to when you sign a release.

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