Enforceability of liability waivers signed by or on behalf of a minor

Despite society’s best efforts to keep children out of harm’s way, children become injured every day. Whether a result of curiosity, clumsiness, underdeveloped motor skills, or simply an accident, a child becoming injured may be one of the most heart-breaking experiences a parent can go through. However, when a child is injured due to a business’s failure to keep their premises in a reasonably safe condition or due to the acts of a negligent employee, a parent may justifiably seek compensation and retribution.

Birthday party venues have evolved beyond the typical Chuck E. Cheese® to begin including increasingly dangerous activities. Bounce-house facilities, laser-tag arenas, paintball facilities, go-kart courses, ice-skating rinks, snow-tubing facilities, rock climbing gyms, motocross parks, skateboard parks, ski resorts, waterparks, and amusement parks are among the many injury-prone birthday party venues.

Liability waiver for minors

Additionally, since the beginning of the 2000’s, trampoline and other adventure indoor parks have sprung up all over the country. People of all ages have flocked to these attractions to bounce on trampolines.  Many of these parks offer additional trampoline-related games and climbing features.  Unfortunately, as the popularity of these parks grows, the opportunity for injury to guests increases. Those injuries from time to time include injuries to minors. This article focuses on the effect of waivers signed by or on behalf of those minor guests if claims for those injuries are ultimately made.

As a general rule, when a person visits an establishment, that person assumes certain risks for injuries that are the natural and foreseeable consequences of activities there. However, in the abundance of caution, most establishments require their patrons to sign a liability waiver before being allowed to participate in the activities there.

These waivers typically purport to absolve the business of all liability resulting from any injury to an attendee of the establishment by including an express assumption of risk provision. An attendee’s injury may be due to gross negligence or intentional acts of the business’s employees, yet the waiver may still purport to absolve the business of all liability. The waiver may also acknowledge using the facilities may result in severe injury, paralysis, or death. Despite these violent warnings, most children will not read these waivers and will simply sign them so that they can begin to play. This incapacity to make well-informed decisions is just one of many reasons supporting the long-standing rule: the contract of a minor is voidable.  See Restatement (Second) of Contracts §14 (Am. Law Inst. 1981).

In 2012, the Fourth Circuit Court of Appeals recognized: “In the absence of legislation to the contrary, exculpatory clauses are generally valid, and that the public policy of freedom of contract is best served by enforcing the provisions of the clause.” Core Communs., Inc. v. Verizon Md., Inc., No. 1:02-cv-3180-JFM, 2012 U.S. Dist. LEXIS 112763, at *9 (D. Md. Aug. 10, 2012). However, the Court recognized three exceptions “where a contract’s exculpatory provision is unenforceable: (1) in the event of intentional or grossly negligent conduct; (2) when the contract is the product of grossly unequal bargaining power; or (3) in transactions affecting the public interest.” Id.  The protection of children is a fundamental public policy, and quite possibly superior to public policy in support of freedom of contract.

In an effort to prevent the waiver from being voided, many establishments will require a parent or legal guardian to execute the agreement on the minor’s behalf and identify the minor in the contract.  While there may be divided case law on point, many states have held that parental waivers of a minor’s rights are unenforceable.  See Kelly v. United States, 809 F. Supp. 2d 429, 436 (E.D.N.C. 2011) (discussing the majority rule that parents may not bind their children to pre-injury liability waivers, though many states recognize an exception where the liability waiver is in the context of non-profit activities sponsored by schools, volunteers, or community organizations).

Drafters of liability waivers may still elect to include a provision which expressly waives both the claims of the child and her guardians. See Blackwell ex rel. Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 634 (Tenn. Ct. App. 2017) (noting that the trial court only found that the liability waiver was unenforceable against the minor, not the Mother). Typically, parents incur the cost of their child’s medical expenses, therefore limiting the parent’s recovery may be particularly effective.

To get around the requirement of a parental signature, a minor may forge their parent’s signature or make a false representation of their age. When this occurs, “minors may be estopped from voiding contracts when those agreements are induced by fraud and deceit, such as when a false representation is made by a minor as to the minor’s age.”  Smith v. Adventure Air Sports Kennesaw, LLC, 357 Ga. App. 1, 4, 849 S.E.2d 738, 742 (2020).

In Smith, a minor executed an agreement in his father’s name without his parents’ permission or knowledge to gain access to a trampoline facility. See id. at 3, 849 S.E.2d at 742. After suffering “serious and debilitating injuries, resulting in paralysis caused by an injury to his spinal cord,” the Smiths argued “that the contract [was] unenforceable because it was executed by a minor.”  Id. at 3-4, 849 S.E.2d at 742. The Georgia Court of Appeals stated: “The key question before us, then, is whether the minor has arrived at those years of discretion when a fraudulent intent could be reasonably imputed to him.”  Id. at 5, 849 S.E.2d at 743 (internal quotation marks omitted). The court reasoned if a minor was old enough to be found guilty of a crime at 13 years of age, that minor could manifest a fraudulent intent, and could not invoke the infancy defense in a tort action.  See id. at 5, 849 S.E.2d at 743 (referencing Code Section 16-3-1 for criminal offenses).  Following this analysis, the court held, “[A]t 17, Noah certainly had the capacity to conceive and execute a fraudulent intent, and the trial court did not err by concluding that he was estopped from voiding the contract.” Id.

In addition to public policy regarding the protection of children, intentional or grossly negligent conduct may prevent a liability waiver from being enforced against a minor just as it does in the case of an adult.  See McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 242, 251, 612 S.E.2d 462, 467 (Ct. App. 2005).

Depending on the jurisdiction, a plaintiff’s recovery for injuries sustained at an entertainment establishment may be limited or barred by either the comparative negligence doctrine or the contributory negligence doctrine. The minority of jurisdictions, Alabama, Maryland, North Carolina, Virginia, and Washington D.C., follow the contributory negligence rule. This rule prevents a plaintiff from recovering damages even if they were only 1% at fault.

Alternatively, most states follow a variation of comparative negligence. States such as California follow pure comparative negligence, which reduces the plaintiff’s recovery by the percentage attributed to the plaintiff’s relative fault. The majority of states, including South Carolina, follow the modified comparative negligence doctrine, which not only reduces a plaintiff’s recovery by the percentage attributed to their relative fault, but also bars a plaintiff’s recovery if the plaintiff was 50% or 51% at fault; the 50% or 51% threshold varies by state.

In determining each party’s relative fault, the South Carolina Supreme Court held, “[A]ll forms of conduct amounting to negligence in any form, including, but not limited to, ordinary negligence, gross negligence, and reckless, willful, or wanton conduct, may be compared to and offset by any conduct that falls short of conduct intended to cause injury or damage.”  Berberich v. Jack, 392 S.C. 278, 293, 709 S.E.2d 607, 615 (2011).

Entertainment establishments may most effectively limit their civil liability through a combination of well-drafted liability waivers, staff training, and safety protocols. By utilizing this combination, an adventure park may greatly decrease the risk of an employee’s negligence resulting in injury to an attendee. Further, having safety protocols in place may help a jury determine relative fault depending on whether such protocols were followed by an alleged negligent employee.

Contributor: Justin Lawlor.