Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.

Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90

However the court held out the possibility that a

properly written indemnification clause may

be upheld.

In Rice et all the plaintiff was a nine year old boy skiing at Sunday River Ski Area. Sunday River Skiway Corporation was owned by the now defunct

Image via Wikipedia

American Ski Company at the time. The mother of the plaintiff signed the plaintiff up for an all-day ski lesson. While doing so she signed a “Acknowledgement &; Acceptance of Risks & Liability Release” (Ski Enrollment Form)” The form stated the risks and released the defendant of liability for negligence. The form also contained an indemnification provisions which stated the parents would indemnify the ski area for any losses of the minor.

During the afternoon instruction the plaintiff fell. The class stopped and waited for him to catch up. The plaintiff lost control and skied into the tree suffering injuries. The plaintiff sued for negligent supervision. The defendants claimed the defenses of the Maine Skiers’ and Tramway Passengers’ Responsibilities Act, 32 M.R.S.A. § 15217 (Supp. 1999) and the release signed by the mother.

The court quickly found the Maine Ski Act did not stop the lawsuit. The Maine Ski Act allows a suit for “does not prevent the maintenance of an action against the ski area operator for the negligent operation of the ski area”. The court found that negligent supervision “clearly” falls within the Maine Ski Acts “negligent operation” exclusion.

The court then looked at the release and struck the normal cords discussing releases. The court looks with disfavor on releases, releases must be strictly construed, and they must spell out with greatest particularity the intention of the parties.

After reviewing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), the court held that Zivich only applied to non-profit organizations and in one-half of a sentence dismissed the issue that a parent is constitutionally allowed to sign a release for a child. The court then looked at prior law in Maine and held that a parent could not sign away a minor’s right to sue in Maine.

The court then looked at the mother’s claim for lost wages. The mother’s claim is derivative of the son’s claims. That means that if the son’s claim does not prevail then the mother’s claim does not stand. Because there were no defenses to the son’s claim then the mother’s claim could go forward.

Whether a parent can recover for their own losses when a child is negligently injured varies from state to state.
The final defense reviewed by the court was the indemnification language in the release. Maine, like all other states disfavors indemnification clauses against a defendant’s own negligence. The court found that this clause was not sufficient to state a defense under Maine law. However the court did not deny indemnifications claims absolutely. A release or indemnification agreement written with the guidelines of the court may be upheld.

So? Summary of the case

Maine fell in with the majority of the states holding that a parent could not sign away a minor’s right to sue. Nothing knew there. However there were several other defenses that were not raised or maybe were raised at later times.

The mother enrolled the plaintiff in a level III class. That required the plaintiff to have experience and be able to “form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.” A minor can assume the risk of injury. Whether or not a nine year minor can I do not know. The specific age were a minor can assume a risk varies by state and by age. However, the plaintiff did have experience skiing and as such might have assumed the risk.

Another outside claim might be that the mother was a fault for signing here son up for a class that was beyond his abilities. Maybe the minor should have been enrolled in a Level 1 or 2 class. However, this claim would be subject to the claim that the instructor should have moved the child if the child was in the wrong class by lunch. This argument may hold if the accident occurred in the morning before the ski instructor had the opportunity to review the student.

The court also brought up and pointed out that the father had not signed any of the documentation. Not a legal point, but an interesting one in this case.

Image via Wikipedia

So Now What?

1. Get the best most well written release you can that specifically stops lawsuits by parents.
2. Educate the minor in advance, and probably the parents so you might have an assumption of the risk defense.
3. Be very wary with kids. If it appears that the minor cannot ski with the rest of the class, either move the minor to another class or move the class to a slope the minor can handle.

What do you think? Leave a comment.

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