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Minors and Releases
Releases are Contracts
Disclaimer:
All legal advice by it’s very nature is
subject to change and the laws of
each state. All legal advice
require...
Reality
• No matter what we learn here a judge
can change it.
• By the time we get done with the
conference a judge has pr...
James H. Moss, J.D.
• OSU Environmental Interpretation
• Capital Law School, J.D.
• 500 Clients in Outdoor Recreation Fiel...
Attorney for:
• O.A.R.S.
• International Mountain Guides
• Noah’s Ark
• C.A.M.P. USA & C.A.M.P. SpA (Italy)
• NRS
• Americ...
Trials
• Whitewater
Rafting
Companies
• Snow Mobiles
• Ropes Course
• Canoe Liveries
• Climbing Gyms
• Land owners
• Ski A...
Adjunct
Instructor
Ski Area Operations Risk Management
Editor
Outdoor Recreation Law Review
Outdoor Recreation Law Review
• Legal News
• Editorials describing legal issues that are affecting
your operation and how ...
UIAA Safety
Committee
• Union Internationale Des Associations
D’Alpinisme (International Mountaineering
and Climbing Feder...
James H. Moss, J.D.
I am the only attorney/person to win an appeal to the Board of
Land Appeals (NPS/BLM)
I’ve participate...
James H. Moss, J.D.
• I am a recovering Trial Attorney
• Citations & Writing are based on the above
Minors and Releases
Releases are Contracts
Common law: Default
Releases are against Void
If the Supremes have not ruled on the issue, releases are
void in that state...
Historical judicial perspective
Minor cannot contract
Unless for necessities
Modified in several states by statute
If mino...
Jones v. Dressel, 623 P. 2d 370, 1981 Colo.
LEXIS 571, (Colo. 1981)
Plaintiff signed contract at age 17
Airplane crashed w...
Jones v. Dressel
• CO Supreme Court Held
– Minor failed to disaffirm
• Timeliness argument
• Failure to Disaffirm is a Rat...
Jones v. Dressel
Thus, since Jones ratified the contract, the
factual issue of whether his suit for personal
injuries was ...
Issue of Timeliness of Disaffirmance
• Scoles, et. al., v. Franzen, 1991 Minn. App.
LEXIS 932
– Time is issue for Jury to ...
Scoles, et. al., v. Franzen
Where a contract, voidable by the infant, is
fully executed, as here, the infant must
disaffir...
Scoles, et. al., v. Franzen
"What is a reasonable time [within which to
disaffirm] will depend on the circumstances of
eac...
Del Santo, Jr., v. Bristol County
Stadium, Inc., 273 F.2d 605; 1960 U.S.
App. LEXIS 5667
What if the minor lies about his ...
Del Santo, Jr., v. Bristol County
Stadium, Inc
• It does not matter
• A minor cannot contract
Sharon v. City of Newton, 2002 Mass. Lexis
384 (Mass. 2002)
However……
We will discuss this case later
Indemnification by Parent
INDEMNIFICATION BY PARENTS
FOR A CHILD’S INJURIES
Unanimously this has been rejected
by the courts
Utah
Hawkins, v. Peart, dba Navajo Trails, 2001 UT
94; 37 P.3d 1062; 433 Utah Adv. Rep. 19;
2001 Utah LEXIS 177 (UT 2001)
Hawkins, v. Peart, dba Navajo Trails
Such an agreement creates an unacceptable
conflict of interest between a parent and a...
Hawkins, v. Peart, dba Navajo Trails
…the indemnity agreement at issue is
inconsistent with a parent’s duty to a child.
Sp...
Seems to be a quasi balance test
Right to control child
Duty to child to protect child
New Jersey
Fitzgerald v. Newark Morning Ledger Co., 267
A.2d 557, 111 N.J. Super. 104 (1970)
Fitzgerald v. Newark Morning Ledger
Co
A parent, as natural guardian, owes his child a
duty of protection and guidance, an...
Fitzgerald v. Newark Morning
Ledger Co
Therefore, defendant induced the father to enter into a
contract in which his perso...
Tennessee
Childress v. Madison County, 777 S.W.2d 1
(TN App. 1989)
Childress v. Madison County
Indemnification agreements executed by a
parent or guardian in favor of tort feasors,
actual o...
Childress v. Madison County
Were the rule otherwise, it would circumvent
the rule [releases signed by parents as void]
reg...
Other Decisions against
Indemnification
Doyle v. Bowdoin College, 403 A.2d 1206 (Me.
1979)
Keeney v. Mystic Valley Hunt, 2...
Other Decisions against
Indemnification
Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9
N.Y.2d 21, 172 N.E.2d 283, 284-86, 21...
Third Party Indemnification
Third Party Indemnification
Many times the parent will not have signed a
release and the leader of the group will be asked...
West Virginia
Johnson, v. New River Scenic Whitewater Tours,
Inc, 313 F. Supp. 2d 621; 2004 U.S. Dist. LEXIS
6166
White wa...
Johnson, v. New River Scenic Whitewater
Tours
• WV Releases have generally been thrown out
the door
• Indemnification next...
Johnson, v. New River Scenic Whitewater
Tours
If a parent were able to waive liability on behalf of a minor,
the responsib...
Johnson, v. New River Scenic Whitewater
Tours
…allowing a parent to indemnify a third party for its
tortious conduct towar...
Indemnification*
• As a Guarantor the UCC/Statue of Frauds
requires a writing
• Indemnification to be effective must be
wr...
Decisions that based on the
language may support
Parental Indemnification of
Minor’s claims
• Rice, Et Als, vs. American S...
Parental Rights over Minors
Parents rights with regard to minors
Mixed bag
Right to control religion
Right to control medical care, including right to...
However
In most states there is no right to sign away a
minor’s right to sue with a pre-injury release
Supreme Court decisions
Troxel, Et Vir v. Granville, 530 U.S. 57; 120 S.
Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS
3767
...
Troxel, Et Vir v. Granville
…the Fourteenth Amendment’s due process
clause protected the fundamental right of
parents to m...
Troxel, Et Vir v. Granville
…according to the Washington Supreme
Court, the Constitution permits a State to
interfere with...
Troxel, Et Vir v. Granville
…there is a constitutional dimension to the
right of parents to direct the upbringing of their...
Troxel, Et Vir v. Granville
Accordingly, so long as a parent adequately
cares for his or her children ( i.e., is fit), the...
General Rule / Common Law
A Parent or Guardian cannot sign away a
minor’s right to sue with a pre-injury release
Parents Cannot Waiver Minor’s Right
to Recover for Injuries
Fedor v. Mauwehu Council, Boy Scouts of Am., 21 Conn.
Supp. 38...
Parents right to sign away a minor’s right
to sue
California: Hohe v. San Diego unified sch. Dist., 224
Cal.App.3d 1559, 2...
California
Hohe v. San Diego unified sch. Dist., 224
Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
City of Santa Barbara v. Th...
Ohio
Zivich v. Mentor Soccer Club, Inc., 696 N.E. 2d
201 (Ohio 1998)
Zivich v. Mentor Soccer Club, Inc.
…the right of a parent to raise his or her child
is a natural right subject to the prot...
Zivich v. Mentor Soccer Club, Inc.
that many decisions made by parents "fall within
the penumbra of parental authority, e....
Zivich v. Mentor Soccer Club, Inc.
"A parent who dishonestly or maliciously signs
a preinjury release in deliberate deroga...
Zivich v. Mentor Soccer Club, Inc.
Having upheld the release agreement against Bryan's
claims, we find it also valid as to...
Massachuestts
Sharon v. City of Newton, 2002 Mass. Lexis
384 (Mass. 2002)
Sharon v. City of Newton, 2002 Mass.
Lexis 384 (Mass. 2002)
• Father signed release for daughter to be
cheerleader
Sharon v. City of Newton: Minor signing K
On November 5, 1998, having reached the age
of majority, Merav filed suit agains...
Sharon v. City of Newton: Minor signing K
This comports with the fundamental liberty
interest of parents in the rearing of...
Sharon v. City of Newton: Parents signing
Release
For the reasons set forth above, we conclude that
Merav’s father had the...
North Dakota
McPhail v. Bismarck Park District, 2003 ND 4;
655 N.W.2d 411; 2003 N.D. LEXIS 3 (ND
2003)
McPhail v. Bismarck Park District
No discussion about a parent signing a release
for a minor
Entire discussion was about t...
McPhail v. Bismarck Park District
We hold the Parent Agreement signed by
McPhail clearly and unambiguously exonerates
the ...
Colorado
C.R.S. 13-22-107 (2008)
Enacted after Supreme Court decision in
Cooper v Aspen Skiing Co, 48 P3d 1229,
(Colo, 200...
C.R.S. 13-22-107 (2008)
13-22-107. Legislative declaration - definitions - children - waiver by parent of prospective negl...
C.R.S. 13-22-107 (2008)
(1)(b) The general assembly further declares that the Colorado supreme court's holding in case
num...
Weakness in CO law
So long as the decision is voluntary and informed
(4) Nothing in this section shall be construed to
per...
Common Issues in these
Decisions
• Defendant was either a governmental entity
• Or a non-profit
• Large argument that acti...
Common Issues in these
Decisions
•Well Written Release
• Magic words present
•Plenty of time to read & review the release
...
States that allow limited right to sign away
a minor’s right to sue
Arizona: § 12-553. Limited liability of equine owners
...
An Aside: Inherent failures of
Equine liability acts
Since the passage of Equine Liability Acts, not
one horse has been su...
STATES THAT HAVE REVERSED
ON RELEASE LAW THAT ONCE
SUPPORTED THE RIGHT TO
WAIVE A MINOR’S CLAIMS
Connecticut
Saccente v. La Flamme, Sr., et al., 2002 Conn.
Super. Lexis 3630 (November, 2002)
Overruled by:
Hanks v. Powde...
Wisconsin
Osborn, et al. v. Cascade Mountain, Inc., 2002
Wis. App. Lexis 1216 (November, 2002)
Global Travel Marketing, In...
Florida
Gonzalez v. City of Coral Gables, 871 So.2d
1067, 29 Fla. L. Weekly D1147
Global Travel Marketing, Inc v. Shea, 20...
Fields, v. Thunder Cross Motor Sports Park
Based on these public policy concerns, it is
clear that the pre-injury release ...
Fields, v. Thunder Cross Motor Sports Park
• For the reasons set forth above, we hold that a
pre-injury release executed b...
Florida Does Allow Arbitration
Global Travel Marketing, Inc v. Shea, 2005 Fla.
LEXIS 1454
• FL Supreme Court held a parent...
And if you Read Fields with Gonzalez
Gonzalez v. City of Coral Gables, 871 So. 2d 1067;
2004 Fla. App. LEXIS 6612; 29 Fla....
But Do your own research on
that
Odd Cases
Applbaum vs Golden Acres Farm and
Ranch, 333 F. Supp. 2d 31; 2004 U.S. Dist.
LEXIS 18130
• Release signed by fat...
States that have ruled Releases Void
Louisiana: C.C. Art. 2004 (2005). Clause that excludes or limits liability. Any
claus...
States Where Court Interpretation of
Statute Restrict the Use of Releases
Hawaii: Revised Statute § 663-1.54. Recreational...
States Where the Supreme Court Has Ruled
Against Releases but Not Voided Them
• Arizona: Phelps v. Firebird Raceway, Inc.,...
Decisions Voided Releases for Minors
Michigan: Woodman v Kera, L.L.C., 2008 Mich.
App. LEXIS 1628
New Jersey: Hojnowski v ...
Decisions Voided Releases for Minors
Washington: Scott v Pac West Mountain Resort,
119 Wash 2d 484; 834 P2d 6 (1992)
Maine...
References: Law Reviews
37 Suffolk U. L. Rev. 439 Suffolk University Law
Review 2004 We, The Parents and Participant, Prom...
References: Outdoor Recreation Law
Review
Case Brief: California Appellate Court rules in favor
of releases when signed by...
References: Outdoor Recreation Law
Review
Case Brief: Case against summer camp offers great
insight into Massachusetts rel...
References: Outdoor Recreation Law
Review
Pending Florida Case Leaves Questions about
Release Validity
Case Brief: Florida...
References: Outdoor Recreation Law
Review
Release Forms — An Update
A Not So Minor Problem
Parent’s Ability to Release Cla...
References: Outdoor Recreation Law
Review
Minors and Releases: An Update
Parent’s Ability to Release Claims on Behalf of C...
To Find these Documents
Google Search: SLRA: Minors & Releases.ppt
Posted as a Google Doc
Or go to: http://rec-law.blogspo...
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Minors and Releases 2009

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Minors and Releases 2009

  1. 1. Minors and Releases Releases are Contracts
  2. 2. Disclaimer: All legal advice by it’s very nature is subject to change and the laws of each state. All legal advice requires a review by your local attorney.
  3. 3. Reality • No matter what we learn here a judge can change it. • By the time we get done with the conference a judge has probably changed it. • If you are really really bad, you are going to lose no matter what
  4. 4. James H. Moss, J.D. • OSU Environmental Interpretation • Capital Law School, J.D. • 500 Clients in Outdoor Recreation Field – Individuals to Organizations – Concessionaires & Permittees – Manufactures to Retailers
  5. 5. Attorney for: • O.A.R.S. • International Mountain Guides • Noah’s Ark • C.A.M.P. USA & C.A.M.P. SpA (Italy) • NRS • American Mountain Guides Association • G3 • Mountain Trip
  6. 6. Trials • Whitewater Rafting Companies • Snow Mobiles • Ropes Course • Canoe Liveries • Climbing Gyms • Land owners • Ski Areas • Mt. Everest • Mountaineering
  7. 7. Adjunct Instructor Ski Area Operations Risk Management
  8. 8. Editor Outdoor Recreation Law Review
  9. 9. Outdoor Recreation Law Review • Legal News • Editorials describing legal issues that are affecting your operation and how they need to change • Analysis of groups of cases that are affecting your business • Specific case analysis with the actual case hyperlinked to the analysis • Written in English • Legal & Insurance Resources
  10. 10. UIAA Safety Committee • Union Internationale Des Associations D’Alpinisme (International Mountaineering and Climbing Federation) • US Member of the UIAA Safety Committee
  11. 11. James H. Moss, J.D. I am the only attorney/person to win an appeal to the Board of Land Appeals (NPS/BLM) I’ve participated in my OR lawsuits than all other attorneys combined (except for ski area defense lawyers) I’ve dealt with the only US litigation over Mt Everest I’ve dealt with Ten Fatalities with no $$ paid I’ve dealt with 3 Quadriplegics with no $$ paid I have taught outdoor skills for universities I have worked as a river, mountain, jungle, cycling and rock climbing guide and I still guide
  12. 12. James H. Moss, J.D. • I am a recovering Trial Attorney • Citations & Writing are based on the above
  13. 13. Minors and Releases Releases are Contracts
  14. 14. Common law: Default Releases are against Void If the Supremes have not ruled on the issue, releases are void in that state Minors cannot sign contracts If the Supremes have not ruled on the issue releases for signed minors are void in that state Parents cannot sign contracts on behalf of minors for post signing injuries If the Supremes have not ruled on the issue signed by parents for minors are void in that state
  15. 15. Historical judicial perspective Minor cannot contract Unless for necessities Modified in several states by statute If minor signs a contract, the contract is voidable by the minor (? Can a minor void what he cannot do?) If minor turns 18 and does not disaffirm contact is enforceable against minor
  16. 16. Jones v. Dressel, 623 P. 2d 370, 1981 Colo. LEXIS 571, (Colo. 1981) Plaintiff signed contract at age 17 Airplane crashed when he was 18 Sued when he was 19
  17. 17. Jones v. Dressel • CO Supreme Court Held – Minor failed to disaffirm • Timeliness argument • Failure to Disaffirm is a Ratification of the Contract
  18. 18. Jones v. Dressel Thus, since Jones ratified the contract, the factual issue of whether his suit for personal injuries was filed within a reasonable time after attaining his majority and constituted disaffirmance of the contract, is not relevant.
  19. 19. Issue of Timeliness of Disaffirmance • Scoles, et. al., v. Franzen, 1991 Minn. App. LEXIS 932 – Time is issue for Jury to decide
  20. 20. Scoles, et. al., v. Franzen Where a contract, voidable by the infant, is fully executed, as here, the infant must disaffirm the same within a reasonable time after reaching his majority or not at all.
  21. 21. Scoles, et. al., v. Franzen "What is a reasonable time [within which to disaffirm] will depend on the circumstances of each particular case, and may be either for the court or for the jury to determine."
  22. 22. Del Santo, Jr., v. Bristol County Stadium, Inc., 273 F.2d 605; 1960 U.S. App. LEXIS 5667 What if the minor lies about his age on the release stating he is over the age of 18?
  23. 23. Del Santo, Jr., v. Bristol County Stadium, Inc • It does not matter • A minor cannot contract
  24. 24. Sharon v. City of Newton, 2002 Mass. Lexis 384 (Mass. 2002) However…… We will discuss this case later
  25. 25. Indemnification by Parent
  26. 26. INDEMNIFICATION BY PARENTS FOR A CHILD’S INJURIES Unanimously this has been rejected by the courts
  27. 27. Utah Hawkins, v. Peart, dba Navajo Trails, 2001 UT 94; 37 P.3d 1062; 433 Utah Adv. Rep. 19; 2001 Utah LEXIS 177 (UT 2001)
  28. 28. Hawkins, v. Peart, dba Navajo Trails Such an agreement creates an unacceptable conflict of interest between a parent and a minor…. In short, an indemnification from negligence that specifically makes a parent the ultimate source of compensation would likely result in inadequate compensation for the minor or family discord.
  29. 29. Hawkins, v. Peart, dba Navajo Trails …the indemnity agreement at issue is inconsistent with a parent’s duty to a child. Specifically, where a parent has a duty to protect the best interests of a child, an agreement to insure a third party against any consequences for that third party’s negligent behavior toward the child can only serve to undermine the parent’s fundamental obligations to the child
  30. 30. Seems to be a quasi balance test Right to control child Duty to child to protect child
  31. 31. New Jersey Fitzgerald v. Newark Morning Ledger Co., 267 A.2d 557, 111 N.J. Super. 104 (1970)
  32. 32. Fitzgerald v. Newark Morning Ledger Co A parent, as natural guardian, owes his child a duty of protection and guidance, and there is at least a moral duty to see that a child's property rights are fully protected.
  33. 33. Fitzgerald v. Newark Morning Ledger Co Therefore, defendant induced the father to enter into a contract in which his personal interest came, or might come, into conflict with his duty to his son. It is clearly void as against public policy because it is an agreement, the object or necessary tendency of which is to place a person owing a duty to a third person, in a position where he is under obligations inconsistent with such duties. The agreement placed the father's personal interest in a position antagonistic to his duty toward the infant. A true conflict arose after the alleged injury to the minor.
  34. 34. Tennessee Childress v. Madison County, 777 S.W.2d 1 (TN App. 1989)
  35. 35. Childress v. Madison County Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian.
  36. 36. Childress v. Madison County Were the rule otherwise, it would circumvent the rule [releases signed by parents as void] regarding exculpatory clauses and the policy of affording protection in the law to the rights of those who are unable effectively to protect those rights themselves.
  37. 37. Other Decisions against Indemnification Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979) Keeney v. Mystic Valley Hunt, 2003 Conn. Super. LEXIS 3130, 2003 WL 22792318, at *3 (Conn. Super. Nov. 13, 2003) (holding that parental indemnity agreements create “precisely the type of scenario that the parental immunity doctrine is designed to prevent”)
  38. 38. Other Decisions against Indemnification Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 172 N.E.2d 283, 284-86, 210 N.Y.S.2d 520 (N.Y. 1961) (where public policy would render a settlement of an infant’s claims unenforceable, similar public policy interests rendered parental indemnity contract unenforceable)
  39. 39. Third Party Indemnification
  40. 40. Third Party Indemnification Many times the parent will not have signed a release and the leader of the group will be asked to sign one on behalf of the child Waste of paper, time and money.
  41. 41. West Virginia Johnson, v. New River Scenic Whitewater Tours, Inc, 313 F. Supp. 2d 621; 2004 U.S. Dist. LEXIS 6166 White water rafting case where church leader signed for parent on release and child was injured. Defendant sued on the release and the indemnification
  42. 42. Johnson, v. New River Scenic Whitewater Tours • WV Releases have generally been thrown out the door • Indemnification next step • Missing parent signature, then group leader signs release
  43. 43. Johnson, v. New River Scenic Whitewater Tours If a parent were able to waive liability on behalf of a minor, the responsibility for paying for any harm suffered by the minor (in particular, medical expenses) would necessarily be borne by the parent, who is obligated to care for her child. Similarly, a parent who indemnifies a third party shifts the responsibility for paying for the financial consequences of harm that befalls the minor as the result of that third party’s illegal conduct. In both situations, then, the result is identical: a tortfeasor who fails to comply with a safety statute is able to shift his financial responsibility for his tortious conduct to the parent of the minor victim.
  44. 44. Johnson, v. New River Scenic Whitewater Tours …allowing a parent to indemnify a third party for its tortious conduct towards the parent’s minor child would result in a serious affront to the doctrine of parental immunity.
  45. 45. Indemnification* • As a Guarantor the UCC/Statue of Frauds requires a writing • Indemnification to be effective must be written like an insurance contract • Indemnification still won’t beat many family protection statutes. *Indemnification issues applies to adults as well as minors
  46. 46. Decisions that based on the language may support Parental Indemnification of Minor’s claims • Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
  47. 47. Parental Rights over Minors
  48. 48. Parents rights with regard to minors Mixed bag Right to control religion Right to control medical care, including right to allow to die Right to control education and diet
  49. 49. However In most states there is no right to sign away a minor’s right to sue with a pre-injury release
  50. 50. Supreme Court decisions Troxel, Et Vir v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767 Kirk Cobain’s kids Courtney Love is the plaintiff in this case.
  51. 51. Troxel, Et Vir v. Granville …the Fourteenth Amendment’s due process clause protected the fundamental right of parents to make decisions concerning the care, custody, and control of their children …there was a traditional presumption that fit parents acted in the best interests of their children
  52. 52. Troxel, Et Vir v. Granville …according to the Washington Supreme Court, the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child.
  53. 53. Troxel, Et Vir v. Granville …there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
  54. 54. Troxel, Et Vir v. Granville Accordingly, so long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.
  55. 55. General Rule / Common Law A Parent or Guardian cannot sign away a minor’s right to sue with a pre-injury release
  56. 56. Parents Cannot Waiver Minor’s Right to Recover for Injuries Fedor v. Mauwehu Council, Boy Scouts of Am., 21 Conn. Supp. 38, 143 A.2d 466, 467-68 (Conn. Super. Ct. 1958) Wagenblast v. Odessa School Dist., 110 Wn.2d 845; 758 P.2d 968; 1988 Wash. LEXIS 86; 85 A.L.R.4th 331 (WA 1988) Scott v. Pacific West Mt. Resort, 834 P.2d 6, 119 Wn.2d 484 (Wash.1992) Munoz v. II Jaz Inc., 863 S.W.2d 207, (Tex. App. 1993) Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414-15, 199 Ill. Dec. 572 (Ill. App. Ct. 1994) Hojnowski v. Vans Skate Park, 2005 N.J. Super. LEXIS 79 (NJ 2005)
  57. 57. Parents right to sign away a minor’s right to sue California: Hohe v. San Diego unified sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990) Ohio: Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) North Dakota: McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 Massachusetts: Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384 Colorado: C.R.S. §§13-22-107. Legislative declaration - definitions - children - waiver by parent of prospective negligence claims
  58. 58. California Hohe v. San Diego unified sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990) City of Santa Barbara v. The Superior Court of Santa Barbara County, 41 Cal. 4th 747; 161 P.3d 1095; 62 Cal. Rptr. 3d 527; 2007 Cal. LEXIS 7603 (CA 2007) Lashley v. East County Gymnastics et al, 2001 Cal. App. Unpub. LEXIS 1729
  59. 59. Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E. 2d 201 (Ohio 1998)
  60. 60. Zivich v. Mentor Soccer Club, Inc. …the right of a parent to raise his or her child is a natural right subject to the protections of due process. Additionally, parents have a fundamental liberty interest in the care, custody, and management of their offspring. Further, the existence of a fundamental, privacy-oriented right of personal choice in family matters has been recognized under the Due Process Clause by the United States Supreme Court.
  61. 61. Zivich v. Mentor Soccer Club, Inc. that many decisions made by parents "fall within the penumbra of parental authority, e.g., the school that the child will attend, the religion that the child will practice, the medical care that the child will receive, and the manner in which the child will be disciplined." He found it notable that the law empowers a parent to consent to medical procedures for a minor child (R.C. 2317.54[C]), gives a parent the general authority to decide to decline medical treatment for the child, and destroys the child's cause of action for battery when consent is given.
  62. 62. Zivich v. Mentor Soccer Club, Inc. "A parent who dishonestly or maliciously signs a preinjury release in deliberate derogation of his child's best interests also seems unlikely. Presumably parents sign future releases to enable their children to participate in activities that the parents and children believe will be fun or educational. Common sense suggests that while a parent might misjudge or act carelessly in signing a release, he would have no reason to sign with malice aforethought.
  63. 63. Zivich v. Mentor Soccer Club, Inc. Having upheld the release agreement against Bryan's claims, we find it also valid as to Mr. and Mrs. Zivich's claims for loss of consortium. Although Mr. Zivich did not personally sign the release agreement, he accepted and enjoyed the benefits of the contract. In fact, when the injury occurred, Mr. Zivich was the parent who was at the practice field that evening. Thus, Mr. Zivich's conduct conveys an intention to enjoy the benefits of his wife's agreement and be bound by it. Under the doctrine of estoppel by acquiescence, Mr. Zivich may not assert his rights against the Club.
  64. 64. Massachuestts Sharon v. City of Newton, 2002 Mass. Lexis 384 (Mass. 2002)
  65. 65. Sharon v. City of Newton, 2002 Mass. Lexis 384 (Mass. 2002) • Father signed release for daughter to be cheerleader
  66. 66. Sharon v. City of Newton: Minor signing K On November 5, 1998, having reached the age of majority, Merav filed suit against the city of Newton, alleging negligence (Count I) and the negligent hiring and retention of the cheerleading coach (Count II). Merav unequivocally repudiated the release (to the extent it might be deemed a contract executed by her) by filing suit against the city
  67. 67. Sharon v. City of Newton: Minor signing K This comports with the fundamental liberty interest of parents in the rearing of their children, and is not inconsistent with the purpose behind our public policy permitting minors to void their contracts.
  68. 68. Sharon v. City of Newton: Parents signing Release For the reasons set forth above, we conclude that Merav’s father had the authority to bind his minor child to an exculpatory release that was a proper condition of her voluntary participation in extracurricular sports activities offered by the city.
  69. 69. North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 (ND 2003)
  70. 70. McPhail v. Bismarck Park District No discussion about a parent signing a release for a minor Entire discussion was about the validity of the release
  71. 71. McPhail v. Bismarck Park District We hold the Parent Agreement signed by McPhail clearly and unambiguously exonerates the Park District for injuries sustained by Kondrad while participating in the BLAST program and which were allegedly caused by the negligent conduct of the Park District. We further hold, therefore, the district court did not err in granting summary judgment dismissing Kondrad’s action against the Park District, and we affirm.
  72. 72. Colorado C.R.S. 13-22-107 (2008) Enacted after Supreme Court decision in Cooper v Aspen Skiing Co, 48 P3d 1229, (Colo, 2002)
  73. 73. C.R.S. 13-22-107 (2008) 13-22-107. Legislative declaration - definitions - children - waiver by parent of prospective negligence claims (1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that: (I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist; (II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities; (III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children. (IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk; (V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and (VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
  74. 74. C.R.S. 13-22-107 (2008) (1)(b) The general assembly further declares that the Colorado supreme court's holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state. (2) As used in this section, unless the context otherwise requires: (a) "Child" means a person under eighteen years of age. (b) For purposes of this section only, "parent" means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1- 103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S. (3) A parent of a child may, on behalf of the child, release or waive the child's prospective claim for negligence. (4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child's prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
  75. 75. Weakness in CO law So long as the decision is voluntary and informed (4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child's prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
  76. 76. Common Issues in these Decisions • Defendant was either a governmental entity • Or a non-profit • Large argument that activities would not be available if no releases • * see Fields, v. Thunder Cross Motor Sports Park • Injuries seemed to be minor • Well written Releases
  77. 77. Common Issues in these Decisions •Well Written Release • Magic words present •Plenty of time to read & review the release •Lots of experience in the activity by the minor
  78. 78. States that allow limited right to sign away a minor’s right to sue Arizona: § 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions Alaska: Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
  79. 79. An Aside: Inherent failures of Equine liability acts Since the passage of Equine Liability Acts, not one horse has been sued. However suits against horse owners have stayed constant.
  80. 80. STATES THAT HAVE REVERSED ON RELEASE LAW THAT ONCE SUPPORTED THE RIGHT TO WAIVE A MINOR’S CLAIMS
  81. 81. Connecticut Saccente v. La Flamme, Sr., et al., 2002 Conn. Super. Lexis 3630 (November, 2002) Overruled by: Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330
  82. 82. Wisconsin Osborn, et al. v. Cascade Mountain, Inc., 2002 Wis. App. Lexis 1216 (November, 2002) Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Overruled by Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2
  83. 83. Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Overruled by Fields, v. Thunder Cross Motor Sports Park; 961 So. 2d 1127; 2007 Fla. App. LEXIS 12241; 32 Fla. L. Weekly D 1865
  84. 84. Fields, v. Thunder Cross Motor Sports Park Based on these public policy concerns, it is clear that the pre-injury release executed by Bobby Jones on behalf of his now deceased son was unenforceable because it prevented the minor's estate from bringing a cause of action against the commercial establishment that provided the activity which resulted in the minor's death.
  85. 85. Fields, v. Thunder Cross Motor Sports Park • For the reasons set forth above, we hold that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor's estate in a tort action arising from injuries resulting from participation in a commercial activity
  86. 86. Florida Does Allow Arbitration Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 • FL Supreme Court held a parent’s signature could bind parents to binding arbitration • Arbitration clause was in a release Son killed by wild animal on African Safari
  87. 87. And if you Read Fields with Gonzalez Gonzalez v. City of Coral Gables, 871 So. 2d 1067; 2004 Fla. App. LEXIS 6612; 29 Fla. L. Weekly D 1147 • A release signed by a parent for a non- profit/charity/governemental program may be upheld • Fields speaks to Commercial Activities. • Gonzalez was a non-profit/governmental youth program release
  88. 88. But Do your own research on that
  89. 89. Odd Cases Applbaum vs Golden Acres Farm and Ranch, 333 F. Supp. 2d 31; 2004 U.S. Dist. LEXIS 18130 • Release signed by father, child was injured • Bad Release • Issue of release covering minor was not ever discussed by parties or court
  90. 90. States that have ruled Releases Void Louisiana: C.C. Art. 2004 (2005). Clause that excludes or limits liability. Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party. Montana: MCA § 27-1-701 Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself. See: Spath v. Dillon 97 F. Supp 2d 1215. Connecticut: Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330 (See Connecticut Supreme Court overrules prior law in deciding releases no longer valid) Virginia: Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890), and upheld in Heitt v. Lake Barnroft 418 SE 2d 894
  91. 91. States Where Court Interpretation of Statute Restrict the Use of Releases Hawaii: Revised Statute § 663-1.54. Recreational activity liability. Provides protection from inherent risk of an activity. New York: General Obligation Law § 5-326 Releases not valid in places of amusement for a fee. West Virginia: Article 3B. Whitewater Responsibility Act.
  92. 92. States Where the Supreme Court Has Ruled Against Releases but Not Voided Them • Arizona: Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53 (See Surprising Arizona Supreme Court Decision Further Endangers Release Language) • New Mexico: Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48 P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25 (See Release of Liability Found to Violate Public Policy) • West Virginia: Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649; 1994 W. Va. LEXIS 161, Murphy v. North American River Runners, Inc., 186 W. Va. 310; 412 S.E.2d 504; 1991 W. Va. LEXIS 222 • Wisconsin: Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 (See Wisconsin Supreme Court decision threatens businesses relying on releases) • Vermont: Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127 (See Killington Held Potentially Liable to the Ski Bums)
  93. 93. Decisions Voided Releases for Minors Michigan: Woodman v Kera, L.L.C., 2008 Mich. App. LEXIS 1628 New Jersey: Hojnowski v Vans Skate Park, 187 NJ 323, 339; 901 A2d 381 (2006) Utah: Hawkins v Peart, 2001 UT 94; 37 P3d 1062, 1066 (Utah, 2002)
  94. 94. Decisions Voided Releases for Minors Washington: Scott v Pac West Mountain Resort, 119 Wash 2d 484; 834 P2d 6 (1992) Maine: Rice, et als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
  95. 95. References: Law Reviews 37 Suffolk U. L. Rev. 439 Suffolk University Law Review 2004 We, The Parents and Participant, Promise Not to Sue ... Until There is an Accident. 2002 Utah L. Rev. 601, Utah Law Review, 2002, The Children Must [and the Timorous May] Stay At Home Hawkins v. Peart 36 U.S.F. L. Rev. 535, University of San Francisco Law Review, Winter, 2002, The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive Their Children's Tort Liability Claims
  96. 96. References: Outdoor Recreation Law Review Case Brief: California Appellate Court rules in favor of releases when signed by a parent States Where Releases Are Void or Restricted signed by a parent Arizona allows a parent to sign away a minor’s right to sue for equine activities Alaska enacts law allowing parents to sign releases
  97. 97. References: Outdoor Recreation Law Review Case Brief: Case against summer camp offers great insight into Massachusetts release law West Virginia court invalidates release and third part indemnification in case against whitewater outfitter Case Brief: California Appellate Court rules in favor of releases when signed by a parent Connecticut Supreme Court overrules prior law in deciding releases no longer valid
  98. 98. References: Outdoor Recreation Law Review Pending Florida Case Leaves Questions about Release Validity Case Brief: Florida Court Establishes Arbitration Precedent in Travel Company Case Wisconsin Supreme Court decision threatens businesses relying on releases Is it Really Worth the Paper It’s Written On? Part I Is it Really Worth the Paper It's Written On? Part II
  99. 99. References: Outdoor Recreation Law Review Release Forms — An Update A Not So Minor Problem Parent’s Ability to Release Claims on Behalf of Child — Revisited Instructor-Student Liability Minors and Releases — Revisited Parents’ Signatures on Release Forms: Is One Enough?
  100. 100. References: Outdoor Recreation Law Review Minors and Releases: An Update Parent’s Ability to Release Claims on Behalf of Child and Other Issues — Revisited
  101. 101. To Find these Documents Google Search: SLRA: Minors & Releases.ppt Posted as a Google Doc Or go to: http://rec-law.blogspot.com/ My blog with link to Google docs. Or email me and I will send it to you: Recreation.law@gmail.com
  102. 102. Thank You

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