By Sara Kooperman
While federal and state constitutions bestow on parents the right to determine what is best for their children, this interest does not also secure a parent’s right to sign a waiver for his/her child to engage in a specified activity. Thus a parent is legally unable to release an organization from potential tort liability on behalf of his/her child so that the child can participate in an activity. More clearly stated pre-injury waivers signed by parents/guardians for their children are not presumptively enforceable. If a child gets injured while participating in a group sport or fitness activity, the service provider, entity or organization running the activity is the responsible party, regardless of any signed waivers.
Put simple, Liability Waivers that are signed by parents for their children will not hold up in court.
This has enormous implications for any entity, facility or organization that holds recreational activities for children. It means that programs must be run with extreme care, staff must be hired accordingly, and a hefty insurance policy should be in place. As fitness providers in this increasingly obese society, we should not shy away from continuing to provide every opportunity for children to exercise, play sports and partake in recreational activities … we simply need to be aware of the issues at hand and proceed accordingly.
This situation has played out again and again in states and cities across the country. There are, of course, subtle differences in how the laws and regulations are written for each state. In Florida, for example, waivers are enforceable to waive all liability for negligence. However, if injury was caused intentionally, the waiver will not be enforced. Further, if the activity knows that injury will probably result, then the release will not be enforced.
In Woodman v. Kera, LLC the court’s decision invalidated a liability release signed by a 5-year-old boy’s parent and let a negligence suit go forward against a commercial play area operator after the child broke his leg. The court looked at the common law principle in Michigan that a parent has no authority merely by virtue of the parental relationship to waive, release or compromise claims of his or her child. In his lead opinion, Judge Michael Talbot said under the current state of both statutory and common law, the waiver could not stand. The judge states further that, ‘This court is aware of no legislative enactments upholding exculpatory agreements, executed by parents on behalf of their minor children before injury, that waive liability for injuries incurred in either commercial or nonprofit settings. … In the absence of a clear or specific legislative directive, we can neither judicially assume nor construct exceptions to the common law extending or granting the authority to parents to bind their children to exculpatory agreements. Thus, the designation or imposition of any waiver exceptions is solely within the purview of the Legislature.’
In a case decided by the Florida Supreme Court in 2008, a release signed by a parent on behalf of a child seeking to engage in a commercial activity was ruled not enforceable. The ruling was based on the premise that parents do not have the right to waive a minor’s right to full liability against a commercial operator.
In yet another trial, Shaner v. State Sys., a Pennsylvania trial court held a waiver of liability form signed by a minor and her father does not prevent the minor from recovering damages for injuries sustained during a university softball camp.
Here, a 14-year-old girl broke her leg while participating in a softball camp run by a university’s softball coach and staffed by university employees.
She sued Pennsylvania’s higher education system, alleging negligence. The defendant argued that because the girl and her father had signed a waiver of liability form as part of the registration process, neither the university nor the staff assumed liability for any injuries sustained at the camp.
The trial court granted defendant a directed verdict, holding that the release barred the plaintiff’s claim. The plaintiff filed a post trial motion, contending the court erred in enforcing the release.
Vacating its order, the trial court found that the release could not be enforced against the girl’s claim for damages because (1 ) she was a minor when she signed the release form, and, thus, incompetent to enter into a contract; and (2) her father did not have the authority, simply by virtue of being a parent, to release the girl’s claim against defendant. Treating the release of liability as a type of contract, the court cited the general rule that a minor is not competent to enter into a valid contract and noted that contracts with minors are voidable upon the minor’s disaffirmance after reaching the age of maturity. Here, the girl’s pursuit of the lawsuit when she reached maturity signified her disaffirmance of the contract.
Some operators of commercial recreational activities have decided not to take minors on dangerous activities or in recreational activities based upon these rulings, but most have simply decided to take the risk that they won’t have an accident. Many of these entities are poorly insured and lightly capitalized and could go out of business upon being sued.
The bottom line is that any service provider involved in offering recreational activity to children needs to be completely informed regarding the state laws, fully insured, and absolutely prudent in delivering safe, well-staffed, programs.
Again, by no means should we cease to provide recreational, fitness and sports activities for children! Conversely, we live in an obese society and – more than ever before – physical activity is unquestionably a critical element and priority in every child’s upbringing. Technology, video games and overall lifestyle changes are keeping children inside their homes, in front of computers and TV’s more than ever before. We all must be advocates for physical activity, fresh air and healthy competition for our children. The intention of this article is simply to inform every provider of children’s activities of the legal implications, and stress the extreme importance of running your programs with the utmost of care.
Sara Kooperman is the CEO of SCW Fitness Education and Les Mills Midwest. She is a licensed attorney who graduated from Washington University School of Law, and completed undergraduate work from Cambridge University in England. She can be reached at sarakooperman@att.blackberry.net
