North Dakota decision allows a parent to sign away a minor’s right to sue.Posted: December 27, 2010 Filed under: Cycling Leave a comment
McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
This case sets forth the North Dakota Supreme Court decision concerning a parent’s right to sign away a minor’s right to sue. Here the parent had enrolled their minor child in a park district program called Blast. The minor was at the Blast program but riding someone else’s bicycle, which was not part of the program, when he was injured. The North Dakota Supreme Court held the release was meant to cover this incident as well as Blast incidents and upheld the release against the minor signed by the mother.
In McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 the minor was injured riding a bicycle that was not part of the Park District program he was enrolled in. The plaintiff’s mother sued the district for his injuries arguing negligent supervision of her child. The district court granted the park district’s motion for summary judgment and the North Dakota Supreme Court upheld the lower court’s decision on appeal.
North Dakota has an interesting court system. The district courts are the first layer or the trial courts. The next layer and the top layer is the Supreme Court. There is a middle layer, the Appellate court; however the Appellate court only hears cases that are assigned to it by the Supreme Court. So you may appeal a decision from the district court and it may be heard by the Supreme Court as in this case, or the Supreme Court may assign it to the Appellate court to be heard.
The release, in this case, was marginal in the view of most courts.
I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ward on account of my participation of my child/ward in this program.
As you can see it did not contain the word negligence. However this was sufficient for the court to be qualified as a release under North Dakota law. The Supreme Court interpreted this paragraph to include an assumption of risk clause; “I agree to assume the full risk of any such injuries, damages or loss regardless of severity,” and a negligence clause; “I waive and relinquish all claims.”
The court also set forth the requirements under North Dakota case law for validating a release. Releases are not favored under the law. Releases are valid if there is “clear and unambiguous language evidencing an intent to extinguish liability.” “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” Any ambiguity in the contract is to be determined by the court as it is a question of law. The court found the language of the release was not limited to only the Blast activities, but to any activity that might occur while the minor was at the Blast program.
In a footnote the court brought up N.D.C.C. § 9-08-02. This statute states:
N.D.C.C. § 9-08-02. Contracts against the policy of the law.
All contracts which have for their object, directly or indirectly, the exempting of anyone from responsibility for that person’s own fraud or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.
The court stated that this statute only precludes intentional or willful conduct. The statute does not preclude a release for negligent conduct.
This decision is very good for business operating in North Dakota in specifically allowing a parent to sign away a minor’s right to sue. It also allows those releases in general to be written in a fairly lose manner. That does not mean that the editors of the law review are encouraging releases in North Dakota to be written loosely. On the contrary, whenever a release is written it should be done by an attorney and written to cover all possible parties and claims and should include the word negligence so that the parties clearly understand what they are giving up.
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