My daughter recently went on a ski trip organized by her middle school ski club. On top of the normal parental permission slip, she also brought home the ski resort waiver form which had to be signed in order for her to participate. The form said, in sum and substance, if we [the ski resort] kill, paralyze or maim your child as a result of our negligence, we are not responsible. Hope you have health insurance. At the same time, without regard to negligence if your kid returns our ski equipment scratched, dented or otherwise damaged, be prepared to write a check. This was unfortunately not our only experience with such a waiver. My son was recently invited to a classmate’s birthday party at one of the trampoline centers that seem to be popping up all over these days. Included with the invitation was a similar waiver for us to sign in order for our son to attend his friend’s party.
Consider this for a second. These businesses profitably market themselves as a fun place to bring children, but at the same time tell you they are so concerned that your child will be injured as a result of their negligence, you need to sign an agreement not to hold the business responsible when it actually happens. I can’t be the only parent troubled by being asked to sign one of these.
But can this actually be enforced? In Illinois, the answer to that question is clearly “No.” The Court, in Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141 (2d Dist. 1994) held that a waiver of liability signed by a parent before the minor child’s cause of action accrued is ineffective. Illinois is not alone in applying this rule. It is the general rule that, in the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child’s cause of action. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 629-32 (S.D. W.Va. 2004) (finding that a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); In re Complaint of Royal Carribean Cruises Ltd., 459 F. Supp. 2d 1275, 1279-81 (S.D. Fla. 2006) (under Florida law, parent’s preinjury release of liability on behalf of minor child was unenforceable to exonerate the commercial lessor of personal watercraft from liability for injuries sustained by child in accident that occurred while the minor was a passenger on watercraft operated by the parent/lessee); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich. App. 552, 550 N.W.2d 262, 263 (1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (2006) (finding in a case involving a child injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County, 777 S.W.2d 1, 6-7 (Tenn. Ct. App.1989) (extending the law that a parent could not execute a preinjury release on behalf of a minor child to a mentally handicapped 20-year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding in a case involving a child injured by falling off a horse provided by a commercial business that “a parent does not have the authority to release a child's claims before an injury”); Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 492-93, 834 P.2d 6 (1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy).
Something to keep in mind the next time one of these waiver forms is put in front of you.