Advertisements

Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue.

Paz v. Life Time Fitness, Inc., et al., 2010 U.S. Dist. LEXIS 133058

Texas requires that a release be clear and conspicuous to anyone signing it. The release must inform the signor that they are giving up their legal rights.

The plaintiff, an injured child, was attending a summer day camp at a fitness center. She and her parents sued the fitness center for her injuries. The defendant filed a motion for summary judgment based on a participation agreement signed by the mother when she enrolled her daughter in the program. The participation agreement included a section entitled “Assumption of the Risk” and another section labeled “Release of Liability.”

The plaintiff’s sued for negligence, gross negligence and premises liability. Premises liability is a claim that the defendant failed to keep the premises (land or building or both) safe for the plaintiff. As the owner of land, each state sets for the requirements for what a landowner must do to keep his or her land safe for people coming upon their land. The amount of protection a person coming on the land deserves is also dependent upon their status when they enter the land and their relationship to the land owner.

The suit was brought in the Federal District Court. In the Federal Court System this is the trial court level. This level of courts, because it is in the Federal System publishes the opinions of the trial court. This is not done in most state court decisions. So in this case, we have an opinion by the trial court that is published.

The issue at the time was not one that had been decided by the Texas Supreme Court. The law of Texas applies to the parties in a Federal Court when the issue is a state issue between parties of two different states. (Confusing? I know.) The federal court system was set up to handle two major types of lawsuits; those against the federal government or concerning federal law and suits between parties of different states or countries. Here, there was no issue of federal law and neither of the parties were federal agencies so the case must be based on the parties being from different state. The case itself is silent on that issue.

Consequently the Federal Court was to decide a State Court legal issue. The court then looked at the Texas decisions and made its ruling on how the Federal Court thought the Texas Supreme Court would decide. This is really no different than how any legal decision is made; how will the court at the next level decide, it is just in this case the issue was discussed in the decision.

So? Summary of the case

The court discussed two major issues in making its decision. The first is Texas’ fair notice requirements for releases. The fair notice provision requires the person signing the release must know what they are signing. That means the release must be conspicuous. As the court stated, fair notice requires:

(1) a party seeking to enforce a release provision comply with the express negligence doctrine

(2) that the provision be conspicuous.

The first part requires part of the test requires the release must express the intent (to release or waive claims in advance of an injury) unambiguously. That means very clearly within the document the parties must be able to see that this is a release. The conspicuous part means that the release language must be so conspicuously written so that a reasonable person would notice it.

In short, you have to identify the document as a release and the release language must be pointed out and understandable. This requirement can be met if the person signing the document, the releaser knows they are signing a release.

The court then looked at whether Texas allowed a parent to sign away a minor’s right to sue and surmised that Texas would follow the majority and not allow a parent to sign away a minor’s right to sue.

So Now What?

This case is short and sweet and clearly outlines the requirements for a release under Texas law. The information contained here should be used by everyone writing a release because it is a very good format for making sure you prevent people from suing you if they are injured.

That means, you want to write a document that shows people when they sign it they can’t sue. That way, your release will not be tested in court. I always get a kick out of releases that when I read them I realize it is just waiting to be tested. The release language and the type of document are so hidden in the release or so obscure that there is no way that anyone would understand what they are signing.

Tell people in advance that they are signing a release. Make sure the release language in your document is clear and in the document in a way that any person reading the document can clearly and easily see they are signing a release.

Never give anyone a reason in your release to test it. 

As far as minors in a program in Texas you are going to have to rely on the doctrine of assumption of the risk. You need to educate the parents and their children on the risks of the activity and do that in a way that you can prove to a jury that the child knew what they were doing was going to injure them. If they are too young to train and/or educate, then you must keep the children safe.

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Texas, #minor, #,

Technorati Tags: ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

Windows Live Tags: Texas,decision,Life,Time,Dist,LEXIS,plaintiff,parents,injuries,defendant,judgment,participation,agreement,daughter,Assumption,Risk,Release,negligence,premises,owner,requirements,landowner,protection,person,status,relationship,Federal,District,Court,System,opinions,decisions,opinion,Supreme,lawsuits,government,Here,agencies,State,Summary,provision,doctrine,injury,requirement,information,Tell,Make,minors,jury,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,upon

WordPress Tags: Texas,decision,Life,Time,Dist,LEXIS,plaintiff,parents,injuries,defendant,judgment,participation,agreement,daughter,Assumption,Risk,Release,negligence,premises,owner,requirements,landowner,protection,person,status,relationship,Federal,District,Court,System,opinions,decisions,opinion,Supreme,lawsuits,government,Here,agencies,State,Summary,provision,doctrine,injury,requirement,information,Tell,Make,minors,jury,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,upon

Blogger Labels: Texas,decision,Life,Time,Dist,LEXIS,plaintiff,parents,injuries,defendant,judgment,participation,agreement,daughter,Assumption,Risk,Release,negligence,premises,owner,requirements,landowner,protection,person,status,relationship,Federal,District,Court,System,opinions,decisions,opinion,Supreme,lawsuits,government,Here,agencies,State,Summary,provision,doctrine,injury,requirement,information,Tell,Make,minors,jury,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,upon

Advertisements