Pre-Injury Liability Waivers: Can I Waive Away My Child’s Right to Recover Damages after an Accident?
By Adam J. Langino, Esq.
Introduction
From birthday parties at trampoline gyms to school sports permission slips, if you have children, you’ve likely signed a pre-injury liability waiver on behalf of them without giving it a second thought. But what happens if your child is seriously injured? Does the waiver you signed on behalf of your child bar a personal injury claim? Unfortunately, the laws on pre-injury liability waivers can be complicated to navigate. This article will give you a brief overview of how courts are likely to evaluate a liability waiver signed on behalf of a child.
If you sign the waiver, it is presumed that you read the terms of the agreement and understand what you’ve signed. However, this doesn’t mean the waiver is now fully enforceable. There are still many factors that can invalidate a waiver, including: (1) the explicit language used in the agreement, (2) the jurisdiction that would evaluate the waiver, and (3) the specific circumstances surrounding the incident.
How Can Waiver Language Affect the Right to Sue?
Waivers are typically treated as valid and enforceable when their terms clearly and unequivocally express a party’s intention to be absolved from liability. Pre-injury liability waivers (often referred to as exculpatory clauses or hold-harmless clauses in more formal legal terms) must be so well-defined that “an ordinary and knowledgeable person would know what he or she was contracting away.”1
Additionally, injury waivers that expressly cover gross negligence, recklessness, intentional torts, or illegal actions are not typically upheld. If a contract attempts to waive all liability, it will likely be found overly broad and unenforceable for public policy reasons. Waivers are not intended to allow people or businesses to behave deliberately or recklessly in such a way to contribute to an injury because they are hiding safely behind a liability waiver – especially where children are concerned.
In some states, like Florida, the legislature has gone so far as to detail the language that is required for a child liability waiver.2 In 2015, the legislature amended the law in response to a lawsuit that invalidated a waiver signed on behalf of a child. The statute provided that natural guardians are authorized to waive and release, in advance, any claim or cause of action against a commercial activity provider resulting out of their minor child’s personal injury or death when it results from an inherent risk of the activity. Under the law, “inherent risk” includes dangers and conditions that are intrinsic to the activity and cannot be eliminated by the activity provider even if they act with due care in a reasonably prudent manner. Further, the activity provider is not required to warn the child or guardian about the inherent risk, and even a negligent or intentional act of another participant can be considered an inherent risk.
Though allowing for waivers for children to be signed by their guardians, the legislature placed explicit limitations on waivers for them to be enforceable. They must include specific language laid out in the statute, and the required terms must be written in uppercase type that is at least 5 points larger than and clearly distinguishable from the rest of the release.3 Additionally, an enforceable release cannot waive more than what is reasonably permitted under the statute. In cases where a waiver meets the statutory requirements, a claimant can still avoid a waiver by demonstrating through clear and convincing evidence that the conduct, condition, or other cause relating to the injury or damage was not an inherent risk of the activity.
Since the Florida law was enacted, it has been amended several times in response to court cases that interpreted the law. Those amendments include an additional limitation that some terms may invalidate an otherwise enforceable waiver. For example, if the pre-injury release contains an agreement to “indemnify” or “hold harmless” a negligent third party (like the promoter of an activity), it will violate public policy concerns and make the agreement defective.
How Does the Location of the Incident Affect the Waiver’s Enforceability?
Not all states are as specific as Florida in detailing the requirements for a waiver to be enforceable with respect to a minor child. How the agreement is applied will depend largely on where the incident occurred and what the waiver terms specify is the applicable jurisdiction in the event of a lawsuit.
Some courts limit the reach of waivers signed on behalf of children as a matter of public policy. In this case, the courts reason that it is unfair to allow a parent to sign away their child’s legal rights – particularly when the child does not have the capacity to understand what has been given up or what the risks were for the activity. Liability waivers are virtually worthless in this case. However, many courts will uphold liability waivers with respect to negligence claims when they meet certain minimum criteria.
States that generally allow and enforce waivers to protect schools and other public-serving organizations (both nonprofit and commercial entities) include Arizona, Alaska, California, Connecticut, Colorado, Florida, Indiana, North Dakota, Ohio, Massachusetts, Minnesota, and Wisconsin.4 States that fall on the other end of the spectrum and consistently reject waivers signed by a parent on behalf of a child include: Alabama, Arkansas, Hawaii, Iowa, Illinois, Louisiana, Maine, Michigan, Montana, New Jersey, Pennsylvania, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia. The more unpredictable states where child waivers are concerned include Delaware, Georgia, Idaho, Kansas, Kentucky, Maryland, Missouri, Mississippi, North Carolina, Nebraska, Nevada, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Vermont, and Wyoming.
Even if the state where an incident occurred generally enforces waivers, every waiver should be evaluated on a case-by-case basis. Courts frequently refuse to uphold waivers for all sorts of situations. For example, in Florida, for a waiver to be enforceable, it cannot waive more than what is reasonably permitted under the statute. To avoid a waiver, a claimant needs to demonstrate through clear and convincing evidence that the conduct, condition, or other cause relating to the injury or damage was not an inherent risk of the activity.
It should also be noted that, even if a waiver is not enforced in a jurisdiction, the plaintiff’s recovery for injuries sustained may still be limited or barred by comparative or contributory negligence doctrines. These rules provide that, where the injured party is partially at fault, that faut may prevent or diminish their recovery of damages in a lawsuit. North Carolina is one such state where a plaintiff is barred from recovery of damages even if they were only 1% at fault.
If the injured child wasn’t in some way at fault, and the parent signed a waiver on their behalf, North Carolina courts are unpredictable in how they will treat the waiver. A 2014 North Carolina case enforced a waiver signed by a parent on behalf of her minor teenager who was injured in her junior Navy ROTC program.5 In that case, the waiver was enforceable because it allowed the plaintiff to participate in a school-sponsored enrichment program that was extracurricular and voluntary. However, that was a decision by a federal judge, not the North Carolina Supreme Court, so it isn’t determinative of how state courts will treat waivers signed on behalf of minors. Further, it applied specifically in the context of non-profit activities sponsored by schools, volunteers, or community organizations, and it would not necessarily apply with commercial activities. Until this issue is more clearly addressed by state appellate courts or the Supreme Court in North Carolina, whether a parent can sign away a minor’s right to sue is unclear.
What Circumstances Are More or Less Likely to Be Covered by a Waiver?
Even if a waiver is enforceable to some degree and a jurisdiction is more inclined to validate a waiver, as a matter of public policy, courts don’t want waivers to be abused to allow a business to carelessly endanger children without consequence. Not all waivers are created equal, and there are still varying degrees of coverage and applicability.
The waiver’s enforceability frequently comes down to whether the injury was caused by an assumed risk. Generally, visiting an establishment or engaging in an activity automatically leads to an assumption of certain risks for injuries. Those incidents which are natural and foreseeable consequences of such activities typically don’t even need a waiver to preclude the right to sue. Schools and businesses frequently require parents to sign waivers for their children’s participation in activities where there may be less obvious or heightened risks of injuries, and they may explicitly detail those risks to expand the umbrella of what may be considered an assumed risk. For example, imagine you signed a waiver for your child to play soccer at a local field, but your child subsequently gets injured when they trip over an unusual and dangerous hole created by a wild animal. If there was an opportunity to know of the hole beforehand and it wasn’t obvious to the kids playing, the property owner or coach could potentially be held liable for not warning players about the hole. However, if the waiver you signed before the game specifically addressed field conditions as an assumed risk, the claim may be precluded.
Though injuries caused by the ordinary course of the action willingly undertaken (i.e., tripping and falling while playing a sport) are part of the assumed risk and therefore not typically actionable, injuries caused by malice (e.g., hazing by teammates, flagrant unnecessary attacks by opposing players, etc.) or by inadequate supervision (e.g., a coach pushing players too far in high heat) can generally result in liability for the responsible party. As previously mentioned, a waiver that attempts to avoid liability for gross negligence, recklessness, or intentional torts will not likely be enforced.
Negligence is usually the only type of tort that can be properly waived. Negligence requires a standard of reasonable care, which means that people and businesses are required to act reasonably to prevent harm. For example, if an equipment inspection is done, but a potentially dangerous issue is not obvious upon inspection, an injury that arises out of the issue that went unobserved would typically be viewed as the result of ordinary negligence. That type of mistake could potentially be covered by a pre-injury liability waiver. On the other hand, gross negligence refers to an extreme departure from what a reasonably careful person would do in the same situation to prevent harm. If no inspection were done at all – or if the safety issue were noticed but not rectified – the responsible party may be found liable despite the presence of a waiver.
A waiver may leave the impression that the business is absolved of all liability from any injury that occurs in the establishment. However, even if a waiver has violent warnings (like those stating the activities in the facility may result in severe injury, paralysis, or death), the likelihood that it will apply to a minor child is debatable and highly circumstantial.
Always read any waiver carefully, especially when it concerns your child. Make sure the waiver and its terms are essential to the activity. If signing the waiver as written is mandatory, be familiar with all the terms. Although waivers are upheld frequently, even the best waiver doesn’t always bar your claim. If your child has been seriously injured but you signed a waiver, consult an attorney familiar with the laws within the jurisdiction that would apply.
Conclusion
I am sorry if you are reading this because your child was injured. I hope that you found the above helpful. As you can see, child injury claims have different considerations than other types of lawsuits. That is why it is important to retain an experienced lawyer to help you. Over my career, I have successfully resolved many child injury claims and I am licensed to practice law in Florida and North Carolina and co-counsel claims in other states. If you would like to learn more about me or my practice, click here. If you want to request a free consultation, click here. As always, stay safe and stay well.
1 Salas v. Schachter, No. 9:14-CV-81483-RLR, at *4 (S.D. Fla. Nov. 12, 2015) (internal citations omitted); see also Fresnedo v. Porky's Gym III, Inc., 271 So. 3d 1185 (Fla. Dist. Ct. App. 2019) (requiring the wording to be “so clear and understandable that an ordinary and knowledgeable person would know that he was contracting away his right to pursue the instant claim”).
2 Fla. Stat. § 744.301
3 See Fla. Stat. § 744.301.
4 See https://nonprofitrisk.org/resources/articles/waivers-and-young-participants/.
5 Kelly v. United States, No. 7:10-CV-172-FL (E.D.N.C. Sep. 25, 2014).