Andrew Hojnowski, a Minor, through his Parents and Guardians Ad Litem, Jerry Hojnowski and Anastasia Hojnowski and Jerry Hojnowski and Anastasia Hojnowski, in their own right, Plaintiffs-Respondents and Cross-Appellants, v. Vans Skate Park, Defendant-Appellant and Cross-Respondent, and Mccown Deleeuw Company, John Doe(s) Skate Park Owner (a fictitious name) and Jane Doe(s) Insurance Company (for med pay only), Defendants.
A-17/A-45 September Term 2005
SUPREME COURT OF NEW JERSEY
187 N.J. 323; 901 A.2d 381; 2006 N.J. LEXIS 1080
January 30, 2006, Argued
July 17, 2006, Decided
PRIOR HISTORY: [***1] On appeal from the Superior Court, Appellate Division, whose opinion is reported at 375 N.J. Super. 568, 868 A.2d 1087 (2005).
Hojnowski ex rel. Hojnowski v. Vans Skate Park, 375 N.J. Super. 568, 868 A.2d 1087, 2005 N.J. Super. LEXIS 79 (App.Div., 2005)
PROCEDURAL POSTURE: Plaintiffs, a minor and his parents, sued defendant skate park for negligence. The park moved to compel arbitration; the trial court granted the park summary judgment and dismissed the suit. Plaintiffs appealed; the New Jersey Superior Court, Appellate Division, affirmed the grant of summary judgment but held that the waiver of liability contained in a pre-injury release signed by a parent was void. Plaintiffs sought further review.
OVERVIEW: Plaintiffs alleged the minor fractured his femur when an aggressive skateboarder, about whom his parents had complained to the park, forced him off a skateboard ramp. One parent had executed a release on the minor’s behalf that provided for mandatory arbitration of claims against the park and limited its liability. Plaintiffs moved to invalidate the release; the trial court did not rule on the validity of the limitation of liability, leaving this issue for the arbitrators to decide. The intermediate appellate court held that the arbitration provision was valid, that the trial court should have ruled on the validity of the liability waiver, and that it was invalid. The high court agreed. Under the parens patriae doctrine, the public policy of New Jersey prohibited a parent of a minor child from releasing the child’s potential tort claims arising out of the use of a commercial recreational facility. But under the public policy expressed in the New Jersey Arbitration Act, former N.J. Stat. Ann. §§ 2A:24-1 to -11, a parent’s agreement to arbitrate was enforceable against any tort claims asserted on the minor’s behalf, in the absence of fraud, duress, unconscionability, or ambiguity.
OUTCOME: The high court affirmed the judgment of the intermediate appellate court and referred the matter to the arbitrator for further proceedings.
CORE TERMS: arbitration, pre-injury, minor child, public policy, exculpatory, parental, settlement, bind, post-injury, tort claims, arbitration agreements, agreement to arbitrate, recreational, enforceable, arbitrator, arbitrate, arbitration provision, unenforceable, public interest, inherent risks, reasonableness, guardian, waive, commercial enterprise, recreational facility, best interests, cause of action, invalidate, implicate, patriae
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Andrew Hojnowski, a minor v. Vans Skate Park, et als. (A-17/45-05)
Argued January 30, 2006 — Decided July 17, 2006
ZAZZALI, J., writing for the Court.
The issue before the Court is whether a parent can bind a minor child to either a pre-injury waiver of liability or an agreement to arbitrate.
In January 2003, twelve-year-old Andrew Hojnowski was injured while skateboarding at a facility operated by Vans, Inc. (Vans). On a previous visit to the facility, Andrew’s mother had executed a release on Andrew’s behalf, which was required in order for Andrew to enter the skate park. The exculpatory release contained a clause agreeing to submit any claims against Vans to arbitration, as well as provisions limiting Vans’ liability for injury.
[***2] In August 2003, Andrew, acting through his parents as guardians ad litem, and his parents, in their own right, filed suit against Vans. Their complaint alleges, among other things, negligent supervision and failure to warn, and negligent failure to provide a safe place. Vans responded by filing a demand for commercial arbitration with the American Arbitration Association. The Hojnowskis then moved to enjoin the arbitration and invalidate the pre-injury release signed by Andrew’s mother and Vans cross-moved for summary judgment. The trial court granted Vans’ motion, dismissing the Hojnowskis’ complaint without prejudice and ordering arbitration. The trial court did not rule on the validity of the liability release, finding the issue for the arbitrators to determine.
On appeal, the Appellate Division unanimously affirmed the trial court’s grant of summary judgment in respect of the validity of the arbitration provision. In addition, the panel found that because the issue presented a question of public policy, the trial court should have ruled on the validity of the waiver. The panel was divided in its resolution of that question. The majority determined that a pre-injury release [***3] of liability executed by a parent on behalf of a minor child violates public policy and is, therefore, unenforceable. The dissent argued that the court should have deferred to the parent’s decision to enter into the agreement and, hence, should have enforced the waiver.
Vans appealed to the Supreme Court as of right on the issue of the validity of the pre-injury release of liability. The Court granted certification on the question of whether a parent can bind a minor child to arbitration.
HELD: Although a parent may agree to bind a minor child to an arbitration provision, which in essence constitutes a choice of forum, a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility.
1. Because exculpatory agreements can encourage a lack of care, courts closely scrutinize liability releases and invalidate them if they violate public policy. The relevant public policy implicated in this case is the protection of the best interests of the child under the parens patriae doctrine, which refers to the State’s capacity as provider of protection to those unable to care [***4] for themselves. In keeping with that doctrine, the Legislature and the courts have historically afforded considerable protections to claims of minor children. The most significant of those protections concerns the compromise or release of a minor’s post-injury claims, requiring the parent to obtain statutory or judicial approval to dispose of the minor’s existing cause of action. The purpose underlying the post-injury settlement rule also applies in the pre-injury context. (Pp. 9-15)
2. Business owners owe invitees a duty of reasonable or due care to provide a safe environment because it is the business owners who are in the best position to control the risk of harm. In this case, the risk of loss should fall on the party best suited to avert injury. The operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train staff in respect of the facility’s proper operation, and regulate the types of activities permitted to occur. The business operator can also obtain insurance and spread the costs of insurance among its customers. Children are not in a position to discover hazardous conditions or insure against risks. In addition, the expectation [***5] that a commercial facility will be reasonably safe is especially important where the patron’s are minors. To permit waivers of liability would remove a significant incentive for operators of these types of facilities that attract children to take reasonable steps to protect their safety. The overwhelming majority of jurisdictions are in accord with the decision to invalidate such waivers. (Pp. 15-19)
3. In view of the protections that New Jersey historically has afforded to a minor’s claims and the need to discourage negligent activity on the part of commercial enterprises attracting children, a parent’s execution of a pre-injury release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable. (P.19)
4. Vans’ remaining contentions are unconvincing. Van’s argument that allowing a pre-injury release of a minor’s potential tort claim is no different than a parent’s decision never to bring suit on the child’s behalf ignores the tolling provisions enabling a minor to retain the right to sue for most personal injuries for two years after reaching the age of majority. Nor does the Court accept the argument that the parental release [***6] implicates the parent’s fundamental right to direct the upbringing of the child. Nor is the Court persuaded by the argument that such releases are necessary to ensure the continued validity of businesses offering sports activities to minors. Tort liability is not an unreasonable economic restraint on the ability of business owners to operate commercial recreational facilities. (Pp. 19-23)
5. Federal policy has favored the enforcement of arbitration agreements for many years. In New Jersey, arbitration is also a favored means of dispute resolution. An agreement to arbitrate generally will be valid under State law unless it violates public policy. Allowing a parent to bind a minor child to arbitrate future tort claims is not contrary to the Court’s duty as parens patriae to protect the best interests of the child. A pre-injury agreement to arbitrate does not require the minor to give up any substantive rights; rather, it specifies only the forum in which those rights are redressed. Furthermore, permitting arbitration of a minor’s claims is consistent with New Jersey case law discussing the enforceability of arbitration agreements that affect the rights of children. Case law [***7] from other jurisdictions reinforces this conclusion. (Pp. 23-31)
Judgment of the Appellate Division is AFFIRMED and the matter is referred to an arbitrator for further proceedings consistent with this opinion.
JUSTICE LaVECCHIA, concurring in part and dissenting in part, in which JUSTICE RIVERA-SOTO joins, is in full agreement with that portion of the majority’s decision that affirms the enforcement of the parties’ agreement to subject their dispute to arbitration. Justice LaVecchia dissents from the majority’s invalidation of the waiver of liability that the parties executed as a condition of the minor’s use of Van’s property to skateboard. Because the type of waiver entered into in this case generally would be enforceable as against an adult, there is no reason why this Court should prevent a parent from ratifying such a waiver on behalf of the minor, provided that a court or arbitrator determines that the release is reasonable.
COUNSEL: Richard C. Wischusen argued the cause for appellant and cross-respondent (Reilly, Supple & Wischusen, attorneys; Alex W. Raybould, on the briefs).
Robert A. Porter argued the cause for respondents and cross-appellants (Bafundo, [***8] Porter, Borbi & Clancy, attorneys).
David G. Evans submitted a brief on behalf of amicus curiae, Pacific Legal Foundation.
JUDGES: Justice ZAZZALI delivered the opinion of the Court. Justice LaVECCHIA, concurring in part and dissenting in part. Justice RIVERA-SOTO joins in this opinion. Chief Justice PORITZ and Justices LONG, ZAZZALI, ALBIN and WALLACE. Justices LaVECCHIA and RIVERA-SOTO. CHIEF JUSTICE PORITZ and JUSTICES LONG, ALBIN, and WALLACE join in JUSTICE ZAZZALI’s opinion. JUSTICE LaVECCHIA filed a separate opinion concurring in part and dissenting in part, in which JUSTICE RIVERA-SOTO joins.
OPINION BY: ZAZZALI
[*327] [**383] Justice ZAZZALI delivered the opinion of the Court.
In this appeal, we must determine whether a parent can bind a minor child to either a pre-injury waiver of liability or an agreement to arbitrate. In January 2003, twelve-year old Andrew Hojnowski was injured while skateboarding at a skate park facility operated by defendant Vans, Inc. (Vans). On a previous visit to the facility, Andrew’s mother had executed a release on Andrew’s behalf. That release contained a clause agreeing to submit any claims against Vans to arbitration, as well as a provision limiting Vans’ liability. After Andrew and his parents (plaintiffs) brought suit seeking recovery for Andrew’s injuries, Vans filed for commercial arbitration. Plaintiffs then moved to enjoin arbitration and to invalidate the [***9] liability release signed by Andrew’s mother.
The trial court found that plaintiffs were bound by the arbitration provision and dismissed their complaint without prejudice. The court declined to rule on whether the liability release was valid, concluding that that issue should be determined by the arbitrator. On appeal, the Appellate Division unanimously voted to uphold the arbitration provision but divided on the validity of the liability release. The majority determined that a pre-injury release of liability executed by a parent on behalf of a minor child violates public policy and is therefore unenforceable. The dissent argued that the court should have deferred to the parent’s decision to enter into the agreement and enforced the waiver. We affirm the majority and hold that although a parent may agree to bind a minor child to an arbitration provision, which in essence constitutes a choice of forum, a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility. Pursuant to our parens patriae duty to protect the best interests [*328] of the child, we will not enforce such a release [***10] in the context of this case.
In January 2003, twelve-year old Andrew Hojnowski and his mother, Anastasia Hojnowski, visited a Vans Store in Moorestown, New Jersey. Defendant Vans operated the retail store that sold skateboards and related merchandise and maintained a recreational skateboard facility. To enter the skate park, Vans required Andrew’s mother to sign an exculpatory release. It appears that Andrew’s mother did not execute a release on the date in question but had executed a release in December 2002, which Vans had kept on file.
The release, entitled “RELEASE AND WAIVER OF LIABILTY AND JURY TRIAL WITH INDEMNITY (FOR ALL VANS SKATEPARKS, STORES AND FACILITIES (COLLECTIVELY, ‘PARKS’) IN NEW JERSEY),” begins by stating:
Please read this document. It affects Your legal rights against Vans, Inc. if you are injured. Do not sign this document unless you understand it. If You are a minor, Your parent or guardian is required to sign this legal document.
The document then provides, in relevant part:
2. Can You Make A Claim For Money If You Are Injured?
If you are injured and want to make a claim, you must file a demand before the American Arbitration [***11] Association (the “AAA”). . . . You agree that any dispute between You and Vans will be decided by the AAA. Vans, Inc. will pay all costs of the arbitration for You. . . .
[**384] 3. Vans Is Asking You To Give Up Legal Rights in Order to Enter This Park
Because using Vans’ Park, or even entering the Park as a spectator may increase your risk of harm, Vans is asking you to give up certain valuable legal rights. Here are the rights you are giving up when you sign this document:
(a) You give up your right to sue Vans in a court of law.
(b) You give up your right to a trial by jury.
(c) You give up the right to claim money from Vans if you are injured unless Vans intentionally failed to prevent or correct a hazard caused by unsafe equipment or devices.
(d) You give up the right to claim money from Vans if you wait more than one year from the injury in order to make a claim.
[*329] (e) You give up the right to claim money from Vans, Inc. if you are injured by another person.
(f) You give up the right to recover damages to punish or make an example of Vans, Inc.
4. Rights You Do Not Give Up
You do not give up the right:
(a) To have safe equipment, [***12] structures and devices at the Park for Your intended use.
(b) To claim compensation for Your injury from Vans, Inc. if you are hurt because the equipment, structures and devices at the Park are not safe for Your intended use.
. . . .
(e) To make a claim if Vans, Inc. or anyone working for Vans, Inc. intentionally hurts you.
5. Who Is Bound By This Document?
You are bound by this document. Anyone who has or can obtain Your rights is also bound by this document, such as Your family, relatives, guardians, executors or anyone responsible for You. . . .
6. Other Information Important For You To Know
You have the right to demand money if You believe Vans, Inc. intentionally caused You harm. If parts of this document are determined to be invalid, then that portion will be unenforceable and the remainder of the document will continue in full legal force and effect. . . .
Following those provisions, Andrew’s mother answered “Yes” to the question: “Do You understand that You are giving up rights by signing this document if You are hurt?” The document also informed customers that “[b]y signing this document You agree that Vans, Inc. may rely [***13] on Your answers.” Andrew’s mother signed the release on Andrew’s behalf in the space provided beneath that provision.
Plaintiffs claim that, during his use of Vans’ facility in January 2003, Andrew suffered a fractured femur when an aggressive skateboarder, about whom his parents had complained to Vans, forced him off a skateboard ramp. Consequently, in August 2003, Andrew, acting through his parents as guardians ad litem, and his parents, in their own right, filed suit against Vans. Their complaint alleges that Vans “negligently fail[ed] to supervise the activities at the skate park, negligently failed to control activities of aggressive skateboarders, negligently failed to warn Plaintiffs’ parents that [*330] the activities of aggressive skateboarders would not be monitored, and negligently failed to provide a safe place to skateboard.” Plaintiffs also filed suit against an unnamed corporate owner and insurance company. Vans responded by filing a demand for commercial arbitration with the American Arbitration Association. [**385] Plaintiffs then moved to enjoin the arbitration and to invalidate the pre-injury release signed by Andrew’s mother, and Vans cross-moved for summary judgment. The [***14] trial court granted Vans’ motion, dismissing plaintiffs’ complaint without prejudice and ordering arbitration. The trial court, however, did not rule on the validity of the liability release, finding that the issue is “for the arbitrators to determine.”
On appeal, the Appellate Division unanimously affirmed the trial court’s grant of summary judgment concerning the validity of the arbitration provision. Hojnowski v. Vans Skate Park, 375 N.J. Super. 568, 574-75, 868 A.2d 1087 (App.Div.2005). The panel held that “a parent can enter into an enforceable contract, binding on the parent’s minor child, that waives the right to trial by jury of the minor’s bodily injury claims and requires submission of ‘any dispute’ to arbitration.” Ibid. The panel also found that because the validity of a pre-injury liability waiver presents a question of public policy, the trial court should have ruled on the waiver’s validity and not referred that question to the arbitrator. Id. at 581-82, 868 A.2d 1087. The panel then divided on the resolution of that issue.
The majority concluded that, under the circumstances of this matter, a parent lacks the authority “to sign a pre-tort [***15] agreement limiting the liability of a tortfeasor to exclude negligent conduct” and therefore voided the release. Id. at 583, 868 A.2d 1087. The majority reasoned that “the judiciary must stand as guardians of the State’s children” and that
[w]ere [the court] to decide otherwise, [it] would be relieving an alleged wrongdoer from its traditional legal responsibility to provide compensation for injuries caused by its negligence and shifting the economic burden to families, public welfare agencies and private charities without any concomitant benefit to either an injured child or his parents.
[*331] [Id. at 590, 868 A.2d 1087.]
Judge Fisher dissented, arguing that the court should have enforced the liability waiver and deferred to a parent’s decision regarding such matters. Id. at 591-92, 868 A.2d 1087 (Fisher, J., concurring in part and dissenting in part). In his view, “in the absence of parental unfitness, courts should not overrule parental decisions but should instead defer to a parent’s own weighing of the benefits and risks when entering into agreements that relate to the activities of their children.” Id. at 592, 868 A.2d 1087 (Fisher, J., concurring [***16] in part and dissenting in part).
Vans appealed to this Court as of right on the issue of the validity of the pre-injury release of liability. R. 2:2-1(a)(2). We also permitted the Pacific Legal Foundation to submit a brief as amicus curiae on that issue and granted plaintiffs’ petition for certification on the question whether a parent can bind a minor child to arbitration. 1 185 N.J. 36, 878 A.2d 853 (2005).
1 On appeal, plaintiffs did not raise the issue of the enforceability of the arbitration provision or the pre-injury liability release against the parents in their own right. Accordingly, our analysis is limited to a determination of the enforceability of those provisions against the minor child. Because the issue is not before us, we neither express nor imply an opinion concerning whether a waiver-of-rights provision of the nature entered into by the parties would be enforceable as against an adult.
We first address whether New Jersey’s public policy permits [***17] a parent to release a minor child’s potential tort claims arising out of the minor’s use of a commercial recreational facility. Plaintiffs argue that [**386] a parent may not waive a minor child’s right to sue for negligence. Relying on Fitzgerald v. Newark Morning Ledger Co., 111 N.J. Super. 104, 267 A.2d 557 (Law Div.1970), and numerous out-of-state decisions, plaintiffs claim that the vast majority of states have held that a parent’s attempt to waive a child’s prospective cause of action is void as a matter of public policy. Plaintiffs assert that public policy disfavors pre-injury waivers of liability [*332] because they encourage tortious conduct by absolving a commercial enterprise of its ordinary duty to exercise due care. Plaintiffs also maintain that because a parent is not permitted to settle a child’s post-injury tort claim without judicial approval, a parent should not be allowed to waive a child’s potential claim before an injury occurs.
Defendant recognizes that the enforcement of parental liability waivers has been “treated in varied fashions by different states.” However, defendant asserts that “[t]he more substantial and well-considered decisions favor enforcement [***18] of exculpatory agreements based on the fundamental right of parents to raise their children as they decide.” Defendant further contends that it is “erroneous” to equate pre-tort releases of liability with post-tort releases because “[t]he conflict of interest and potential for harm to befall a minor are far different in the context of a release of an accrued tort claim where settlement funds are present and may be misappropriated.” Finally, defendant claims that “[w]ithout enforceable [r]eleases many activities available to children may be forced to close due to liability concerns.”
We begin our analysis of that issue by noting that there is ambiguity in the pre-injury release concerning whether the agreement extinguishes or merely limits plaintiffs’ ability to recover against defendant for negligence. For example, although paragraph 3(c) provides that plaintiffs have “give[n] up the right to claim money from [defendant] unless [defendant] intentionally failed to prevent or correct a hazard caused by unsafe equipment or devices,” paragraph 4(b) states that plaintiffs have not “give[n] up the right to claim compensation [if] the equipment, structures and devices [***19] at the Park are not safe for [their] intended use.” We need not determine the precise scope and meaning of those terms, however, because we hold that the public policy of New Jersey prohibits a parent of a minor child from releasing a minor child’s [*333] potential tort claims arising out of the use of a commercial recreational facility.
[HN1] Exculpatory agreements have long been disfavored in the law because they encourage a lack of care. See, e.g., Gershon v. Regency Diving Ctr., 368 N.J. Super. 237, 247, 845 A.2d 720 (App.Div.2004); Ultimate Computer Servs., Inc. v. Biltmore Realty Co., 183 N.J. Super. 144, 151, 443 A.2d 723 (App.Div.), certif. denied, 91 N.J. 184, 450 A.2d 522 (1982). For that reason, courts closely scrutinize liability releases and invalidate them if they violate public policy. See, e.g., Lucier v. Williams, 366 N.J. Super. 485, 491, 841 A.2d 907 (App.Div.2004) (“[C]ourts have not hesitated to strike limited liability clauses that are unconscionable or in violation of public policy.”). It is well settled that to contract in advance to release tort liability resulting from intentional or reckless conduct [***20] violates public policy, Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575, 580, 111 A.2d 425 (App.Div.1955); Restatement (Second) of Contracts § 195 (1981), as does a contract that releases liability from a statutorily-imposed duty, [**387] McCarthy v. NASCAR, Inc., 48 N.J. 539, 542, 226 A.2d 713 (1967). Further, courts have found that exculpatory agreements for negligence claims violate public policy in a variety of settings, such as in residential leases, Cardona v. Eden Realty Co., 118 N.J. Super. 381, 384, 288 A.2d 34 (App.Div.), certif. denied, 60 N.J. 354, 289 A.2d 799 (1972), or in connection with rendering professional services, Lucier, supra, 366 N.J. Super. at 495, 841 A.2d 907; Erlich v. First National Bank, 208 N.J. Super. 264, 287, 505 A.2d 220 (Law Div.1984).
The relevant public policy implicated in this matter is the protection of the best interests of the child under the parens patriae doctrine. [HN2] Parens patriae refers to “the state in its capacity as provider of protection to those unable to care for themselves.” Black’s Law Dictionary 1144 (8th ed.2004). [***21] In keeping with that policy, the Legislature and the courts historically [*334] have afforded considerable protections to claims of minor children. The most significant of those protections concerns the compromise or release of a minor’s post-injury claims. Under Rule 4:44, after a minor has suffered a tortious injury, a minor’s parent or guardian may not dispose of a minor’s existing cause of action without statutory or judicial approval. See
Moscatello ex rel. Moscatello v. Univ. of Med. & Dentistry of N.J., 342 N.J. Super. 351, 361, 776 A.2d 874 (App.Div.), certif. denied, 170 N.J. 207, 785 A.2d 435 (2001); Riemer v. St. Clare’s Riverside Med. Ctr., 300 N.J. Super. 101, 110-11, 691 A.2d 1384 (App.Div.), certif. denied, 152 N.J. 188, 704 A.2d 18 (1997); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 377, 519 A.2d 893 (App.Div.1986). That Rule applies regardless of whether suit has been filed on the minor’s behalf, see, e.g., Moscatello, supra, 342 N.J. Super. at 361, 776 A.2d 874, and its purpose is “to guard a minor against an improvident compromise [and] to secure the minor against dissipation of [***22] the proceeds,” Colfer, supra, 214 N.J. Super. at 377, 519 A.2d 893.
Although the Rule governing post-injury settlements is not dispositive of our treatment of pre-injury releases, we find that the purposes underlying the post-injury settlement rule also apply in the present context. First, children deserve as much protection from the improvident compromise of their rights before an injury occurs as Rule 4:44 affords them after the injury. Moreover, at the time a parent decides to release the potential tort claims of his or her child, the parent may not fully understand the consequences of that action and may not have even read the waiver before signing. As the Utah Supreme Court has noted:
These clauses are . . . routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, however, relates to negligence that has already taken place and is subject to measurable damages. Such releases involve actual negotiations [***23] concerning ascertained rights and liabilities. Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario. [Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (2001) (emphasis added).]
[*335] Further, in both the pre- and post-injury context, it is necessary to ensure that children retain the ability to seek compensation for an injury. When a parent signs a pre-injury release of liability and the child is later injured, the parent is [**388] left to provide for the child’s injuries while the negligent party suffers no liability. If a parent is unable to finance the child’s injuries, the child may be left with no resources to obtain much needed care or support. See
Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1235 (Colo.2002) (“[T]o allow a parent to release a child’s possible future claims for injury caused by negligence may as a practical matter leave the minor in an unacceptably precarious position with no recourse, no parental support, and no method to support himself or care for his injury.” (footnote omitted)); Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 12 (1992) [***24] (“[W]here parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care.”).
Those concerns are even more acute in the context of commercial premises liability. [HN3] In New Jersey, “[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, 818 A.2d 314 (2003). That is because business owners “are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm.” Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517, 688 A.2d 1018 (1997) (citations omitted). It follows that in this case the risk of loss should fall on the party best suited to avert injury. See
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 447, 625 A.2d 1110 (1993) (recognizing “salutary effect of shifting the risk of loss . . . to those who should be able and are best able to bear them”). The operator of a commercial recreational enterprise [***25] can inspect the premises for unsafe conditions, train his or her employees with regard to the facility’s proper operation, and regulate the types of activities permitted to occur. Such an operator also can obtain [*336] insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks. Moreover, the expectation that a commercial facility will be reasonably safe to do that which is within the scope of the invitation, see
Nisivoccia, supra, 175 N.J. at 563, 818 A.2d 314, is especially important where the facility’s patrons are minor children. If we were to permit waivers of liability, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety.
In finding that the exculpatory provision in this matter is invalid, we are in agreement not only with our own State’s case law, but also with the overwhelming majority of other jurisdictions. See, e.g., Fitzgerald, supra, 111 N.J. Super. at 108, 267 A.2d 557 (invalidating exculpatory agreement executed by parent on behalf of minor [***26] child that released defendant from liability to child for future injuries and required parent to indemnify defendant for any claims brought by minor); In re Royal Caribbean Cruises Ltd., 403 F. Supp. 2d 1168, 1172-73 (S.D.Fla.2005) (stating that where “a release of liability is signed on behalf of a minor child for an activity run by a for-profit business, outside of a school or community setting, the release is typically unenforceable against the minor”); Simmons v. Parkette Nat’l Gymnastic Training Ctr., 670 F. Supp. 140, 144 (E.D.Pa.1987) (concluding that parent’s execution of pre-injury release did not exculpate third party from potential claims of minor child); Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F. Supp. 20, 24 (E.D.Pa.1985) (“Under Pennsylvania law, parents do not possess the authority to release . . . potential claims of a minor [**389] child merely because of the parental relationship.”); Cooper, supra, 48 P.3d at 1233-35 (holding that Colorado’s public policy prohibits parents from contractually releasing child’s future claims for injury caused by negligence); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 415, 199 Ill. Dec. 572 (1994) [***27] (concluding that because “parent’s waiver of liability was not authorized by any statute or judicial approval, it had no effect to bar the minor child’s (future) [*337] cause of action”); Santangelo v. City of New York, 66 A.D.2d 880, 411 N.Y.S.2d 666, 667 (1978) (holding that minor was not bound by exculpatory release executed by parent on minor’s behalf); Munoz v. II Jaz, Inc., 863 S.W.2d 207, 209-10 (Tex.Ct.App.1990) (concluding that allowing parent to waive child’s right to sue for personal injury “would be against the public policy to protect minor children”); Scott, supra, 834 P.2d at 12 (“To the extent a parent’s release of a third party’s liability for negligence purports to bar a child’s own cause of action, it violates public policy and is unenforceable.”); Hawkins, supra, 37 P.3d at 1065-66 (concluding that “a parent does not have the authority to release a child’s claims before an injury”); see also
Auto. Workers v. Johnson Controls, Inc., 499 U.S. 187, 213, 111 S. Ct. 1196, 1211, 113 L. Ed. 2d 158, 183 (1991) (White, J., concurring in part and concurring in the judgment) [***28] (stating that “the general rule is that parents cannot waive causes of action on behalf of their children”); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me.1979) (stating in dicta that parent cannot release child’s cause of action); Williams v. Patton, 821 S.W.2d 141, 147 n.8, 35 Tex. Sup. Ct. J. 65 (Tex.1991) (Doggett, J., concurring) (stating that parental releases of minor’s potential tort claims are “outrightly disfavored”).
Although we recognize that jurisdictions are not uniform on the question of waiver, our research discloses that the only published decisions in which such agreements have been upheld are in connection with non-commercial ventures, such as volunteer-run or non-profit organizations. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647, 648-50 (1990) (upholding parental agreement releasing any claims of minor child resulting from child’s participation in school-sponsored event); Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067 (Fla.Dist.Ct.App.2004) (upholding parental liability release in context of “community or school supported activities”); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 207 (1998) [***29] (holding that parent may bind minor child to provision releasing volunteers and sponsors of non-profit sports activity from liability for negligence); Sharon v. City of Newton, 437 Mass. 99, 769 [*338] N.E.2d 738, 741, 745 (2002) (concluding that parent had authority to bind minor child to exculpatory release as condition of child’s participation in public-school extracurricular sports activities). Without expressing an opinion on the validity of parental liability releases in such settings, it suffices to note that volunteer, community, and non-profit organizations involve different policy considerations than those associated with commercial enterprises. Such a distinction is buttressed by the fact that the Legislature has afforded civil immunity from negligence to certain volunteer athletic coaches, managers, officials, and sponsors of non-profit sports teams, see, e.g., N.J.S.A. 2A:62A-6 to -6.2, while not providing similar immunities from negligence in the commercial realm.
Accordingly, [HN4] in view of the protections that our State historically has afforded to a minor’s claims and the need to discourage negligent activity on the part [***30] of commercial enterprises attracting children, we hold that a parent’s execution of a pre-injury [**390] release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable.
In so holding, we find that defendant’s remaining contentions and those of the dissent below are unconvincing. First, we are not persuaded by the argument that we should allow for parental liability releases because a pre-injury release of a minor’s potential tort claims is no different than a parent’s decision not to bring suit on a minor’s behalf. That argument ignores the fact that, under the tolling provisions of N.J.S.A. 2A:14-21, a minor retains the right to sue for most personal injuries for two years after reaching the age of majority, N.J.S.A. 2A:14-2. One of the rationales behind the tolling provision is that a child should not “be penalized for the ignorance or neglect of his parents or guardian in failing to assert [his or her legal] rights.” O’Connor v. Altus, 67 N.J. 106, 131-32, 335 A.2d 545 (1975) (Pashman, J., concurring in part and dissenting in part). Consequently, although [***31] a parent may control a minor’s right to seek tort compensation [*339] until the age of majority–either by choosing not to sue or by neglecting to do so–a minor’s claim is not eliminated by the parent’s decision; it merely is delayed. Were we to uphold the challenged pre-injury release, however, we would permanently bar the minor’s tort claim, a far more draconian effect.
Nor do we accept the argument that a parental release of liability on behalf of a minor child implicates a parent’s fundamental right to direct the upbringing of his or her child. [HN5] Although parents undoubtedly have a fundamental liberty interest “in the care, custody, and control of their children,” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56 (2000), the question whether a parent may release a minor’s future tort claims implicates wider public policy concerns and the parens patriae duty to protect the best interests of children. See
Cooper, supra, 48 P.3d at 1235 n.11 (concluding that parental release of child’s right to sue for negligence is “not of the same character and quality as those rights recognized as implicating parents’ fundamental [***32] liberty interest in the ‘care, custody and control’ of their children”). As the majority opinion below noted, “[w]ere it otherwise, existing restrictions on parental conduct in the context of litigation involving minors would long ago have been abrogated in New Jersey.” Hojnowski, supra, 375 N.J. Super. at 585, 868 A.2d 1087. Indeed, the post-injury settlement rule is but one example of such restrictions. Moreover, nothing in our analysis interferes with the constitutionally protected right of a parent “to permit or deny a child’s participation in any or all of the recreational activities that may be available.” Id. at 597, 868 A.2d 1087 (Fisher, J., concurring in part and dissenting in part).
We also reject defendant’s argument that enforcing parental releases of liability is necessary to ensure the continued viability of businesses offering sports activities to minors. We do not view tort liability as an unreasonable economic restraint on the ability of business owners to operate commercial recreational facilities. See
Scott, supra, 834 P.2d at 12 (finding “[n]o legally sound reason . . . for removing children’s athletics from the normal tort system”). [***33] [*340] Indeed, by invalidating pre-injury releases of liability executed by a parent on a minor’s behalf, we are not altering the landscape of common-law tort liability principles by which commercial enterprises typically must abide. Rather, we are preserving the traditional duties owed by business owners to their invitees. Further, as noted, because such facilities [**391] derive economic benefit from their operation, they are better able to assume the costs associated with proper maintenance and the prevention of injury than are the children to whom they cater.
Finally, the dissent below argued that invalidating parental releases of liability “is at odds with our Legislature’s willingness to render participants solely responsible for injuries resulting from the inherent risks of similar activities.” Hojnowski, supra, 375 N.J. Super. at 593, 868 A.2d 1087 (Fisher, J., concurring in part and dissenting in part). That argument refers to legislative acts in the areas of skiing, N.J.S.A. 5:13-1 to -11; roller skating, N.J.S.A. 5:14-1 to -7; and equestrian activities, N.J.S.A. 5:15-1 to -12, which place the [***34] responsibility for injuries resulting from “inherent risks” of the sport on the participant. However, those statutes do not absolve an operator of a facility from liability for its own negligence. Instead, the statutes apply only to inherent risks, which, by their very nature, are those “that cannot be removed through the exercise of due care if the sport is to be enjoyed.” Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 499, 677 A.2d 705 (1996); see also
Pietruska v. Craigmeur Ski Area, 259 N.J. Super. 532, 537, 614 A.2d 639 (Law Div.1992) (finding that “[i]mproper operation of a ski lift is not an inherent risk of skiing since, with due care, it can be eliminated”). As such, inherent risks need not be the subject of waiver because “the general law of negligence has long recognized that a defendant has no duty with regard to such risks.” Brett, supra, 144 N.J. at 499, 677 A.2d 705; see also
Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 49, 155 A.2d 90 (1959) (stating that assumption of inherent risk “is an alternate expression for the proposition that defendant was not negligent”). Thus, a commercial enterprise [***35] is [*341] not liable for injuries sustained as a result of an activity’s inherent risks so long as that enterprise has acted in accordance with “the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.” Rosania v. Carmona, 308 N.J. Super. 365, 374, 706 A.2d 191 (App.Div.), certif. denied, 154 N.J. 609, 713 A.2d 500 (1998).
The second issue that we must decide is whether a parent can bind a minor child to an agreement to arbitrate future disputes arising out of a commercial recreation contract. Plaintiffs contend that “[although] arbitration is an approved alternative to a jury trial, an unsophisticated parent, about to have [his or her] child enter a recreational facility, should not be permitted to bind [his or her] child to a waiver of a trial by jury.” Defendant counters that this Court should enforce the parent’s agreement to submit the minor’s claims to arbitration because the Appellate Division previously upheld such an agreement in Allgor v. Travelers Insurance Co., 280 N.J. Super. 254, 654 A.2d 1375 (App.Div.1995). [***36] Defendant also argues that plaintiffs should be bound to arbitrate the present matter because public policy favors the arbitration of disputes. We agree and find that a parent’s agreement to arbitrate a minor’s potential tort claims is not contrary to public policy.
[HN6] Federal policy has favored the enforcement of arbitration agreements for many years. In 1925, Congress enacted the Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1-16, to reverse then existing judicial hostility to arbitration agreements and “to place arbitration agreements upon [**392] the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S. Ct. 1647, 1651, 114 L. Ed. 2d 26, 36 (1991). To that end, § 2 of the FAA provides:
[HN7] [*342] A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such a contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. [Emphasis added.]
[HN8] Although the FAA applies to both state [***37] and federal judicial proceedings, state contract-law principles generally govern a determination whether a valid agreement to arbitrate exists. See, e.g., First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 1924, 131 L. Ed. 2d 985, 993 (1995) (“When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally . . . should apply ordinary state-law principles that govern the formation of contracts.”). However, “a state cannot subject an arbitration agreement to more burdensome requirements than those governing the formation of other contracts.” Leodori v. CIGNA Corp., 175 N.J. 293, 302, 814 A.2d 1098, cert. denied, 540 U.S. 938, 124 S. Ct. 74, 157 L. Ed. 2d 250 (2003).
[HN9] In New Jersey, arbitration also is a favored means of dispute resolution. See, e.g., Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85, 800 A.2d 872 (2002); Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 131, 773 A.2d 665 (2001); Marchak v. Claridge Commons Inc., 134 N.J. 275, 281, 633 A.2d 531 (1993). Our Legislature [***38] codified its endorsement of arbitration agreements in the Arbitration Act, N.J.S.A. 2A:24-1 to -11, which, like its federal counterpart, provides that agreements to arbitrate shall be valid save for “such grounds as exist at law or in equity for the revocation of a contract,” N.J.S.A. 2A:24-1. 2 In accordance with those principles, an agreement to arbitrate generally will be valid under state law unless it violates public policy. See, e.g., Marchak, supra, 134 N.J. at 281-82, 633 A.2d [*343] 531 (“Honoring an agreement to submit a matter to arbitration is consistent with the premise that, as long as the agreement does not violate public policy, parties may bargain freely.”); Faherty v. Faherty, 97 N.J. 99, 105, 477 A.2d 1257 (1984) (“A court generally will enforce an arbitration agreement unless it violates public policy.”).
2 N.J.S.A. 2A:24-1 to -11 was superseded by a modified version of the Arbitration Act, N.J.S.A. 2A:23B-1 to -32, effective January 1, 2003, and applicable to agreements entered into on or after that date, N.J.S.A. 2A:23B-3a. Because the arbitration agreement at issue in this appeal was executed prior to that date, this matter is governed by the former statute.
In light of the strong public policy favoring the settlement of disputes through arbitration, we conclude that allowing a parent to bind a minor child to arbitrate future tort claims is not contrary to our duty as parens patriae to protect the best interests of the child. As opposed to a pre-injury release of liability, a pre-injury agreement to arbitrate does not require a minor to forego any substantive rights. Rather, such an agreement specifies only the forum in which those rights are vindicated. See, e.g., Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 403 (Fla.2005) (stating that distinction between waiver of forum in which claim is presented and outright waiver of legal claim “is a crucial consideration in determining whether state’s interest in protecting children renders [**393] the waiver unenforceable”); Cross v. Carnes, 132 Ohio App. 3d 157, 724 N.E.2d 828, 836 (1998) (stating that “parent’s consent and release to arbitration only specifies the forum for resolution of the child’s claim; it does not extinguish the claim”). In that respect, our Appellate Division has observed that
[t]he ancient practice of [***40] arbitration “[i]n its broad sense, . . . is a substitution, by consent of the parties, of another tribunal for the tribunal provided by the ordinary processes of law. The object of arbitration is the final disposition, in a speedy, inexpensive, expeditious, and perhaps less formal manner, of the controversial differences between the parties.”
[Carpenter v. Bloomer, 54 N.J. Super. 157, 162, 148 A.2d 497 (App.Div.1959) (quoting E. Eng’g Co. v. City of Ocean City, 11 N.J. Misc. 508, 510-11, 167 A. 522 (Sup.Ct.1933)).]
Further, although this Court previously has not ruled on the issue, permitting arbitration of a minor’s claims is consistent with New Jersey case law discussing the enforceability of arbitration agreements that affect the rights of children. For example, in [*344] Allgor, supra, the Appellate Division concluded that a father’s contractual agreement to submit to arbitration disputes arising under his underinsured motorist policy also bound his minor son who filed a claim under that policy. 280 N.J. Super. at 262-65, 654 A.2d 1375. The court rejected the contention that “arbitration is not appropriate when the best interests [***41] of a child are at stake.” Id. at 261, 654 A.2d 1375. Our decision in Faherty also supports enforcement of the arbitration provision at issue. In that case, we held that public policy permits spouses to include provisions in their separation agreements for arbitration of child support disputes, subject only to heightened judicial review of the arbitrator’s award. Faherty, supra, 97 N.J. at 108-09, 477 A.2d 1257. We reasoned that
[w]e do not agree with those who fear that by allowing parents to agree to arbitrate child support, we are interfering with the judicial protection of the best interests of the child. We see no valid reason why the arbitration process should not be available in the area of child support; the advantages of arbitration in domestic disputes outweigh any disadvantages.
[Id. at 109, 477 A.2d 1257 (emphasis added).]
Finally, a review of case law from other jurisdictions reinforces our conclusion that a parent should be permitted to bind a minor child to arbitration. In Global Travel Marketing, supra, the Florida Supreme Court recently reversed a Florida Court of Appeals ruling, upon which plaintiffs relied, [***42] which held that parents lack authority to bind a minor child to arbitrate prospective claims arising out of a commercial travel contract for an African safari. 908 So. 2d at 394-95. In finding that such agreements are “not contrary to the public policy of protecting children,” id. at 405, the court recognized a “crucial” distinction between an outright waiver of a minor’s legal claims and a waiver of the forum in which the claims are presented, id. at 403.
The Ohio Court of Appeals reached a similar conclusion in Cross, supra, 724 N.E.2d 828. There, the producers of a television show sought to enforce an arbitration agreement signed by a parent on behalf of a child who sued the show for fraud and defamation after the show allegedly portrayed [*345] the child as a bully. Id. at 830-31. The court upheld that agreement and found that “a parent has the authority to bind his or her child to a resolution of the child’s claims [**394] through arbitration.” Id. at 836. The court reasoned that the Ohio Supreme Court previously had upheld a liability waiver executed by a parent on behalf of a minor participating in a recreational [***43] activity sponsored by a non-profit organization. Ibid. (citing Zivich, supra, 82 Ohio St.3d 367, 696 N.E.2d 201). In relying on Zivich, however, the court noted that
[a] parent’s consent and release to arbitration only specifies the forum for resolution of the child’s claim; it does not extinguish the claim. Logically, if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she has the same authority to choose arbitration as the litigation forum.
Doyle v. Giuliucci, 62 Cal. 2d 606, 401 P.2d 1, 3, 43 Cal. Rptr. 697 (1965) (stating that arbitration provision in contract for medical services signed by parent on minor’s behalf “is a reasonable restriction, for it does no more than specify a forum for the settlement of disputes”); accord
Leong v. Kaiser Found. Hosps., 71 Haw. 240, 788 P.2d 164, 169 (1990) (concurring with reasoning of Doyle and holding that minor was bound by arbitration provision in contract for medical services signed by father).
Although we recognize that certain cases from other jurisdictions have found a minor’s claims to be non-arbitrable, [***44] those cases are distinguishable because they were decided solely on the basis of the individual contracts at issue in those appeals. They did not directly rule on the larger issue presented by this appeal–whether a parent can bind a minor child to arbitrate future disputes. Fleetwood Enters. Inc. v. Gaskamp, 280 F.3d 1069, 1077, reh’g denied, 303 F.3d 570 (5th Cir.2002) (holding that minor children were not bound to arbitrate injuries suffered as result of formaldehyde inhalation because children were neither signatories to mobile-home sales contract signed by their parents nor third-party beneficiaries of that contract); Billieson v. City of New Orleans, 863 So. 2d 557, 562-63 (La.Ct.App.2003) (concluding that children’s claims for lead poisoning were not precluded by [*346] arbitration agreement between city housing authority and property management company because children were not third-party beneficiaries of agreement); see also
Lewis v. Cedu Educ. Servs., 135 Idaho 139, 15 P.3d 1147, 1152 (2000) (concluding that child was not bound to arbitrate based on language of contract and expressly declining to determine [***45] whether “minors should or should not be bound to arbitrate disputes arising out of contracts entered into on their behalf by their parents”); Accomazzo v. Cedu Educ. Servs., Inc., 135 Idaho 145, 15 P.3d 1153, 1156 (2000) (same). Therefore, [HN10] in the absence of any allegations relating to fraud, duress, or unconscionability in the signing of the contract or that the agreement to arbitrate was not written in clear and unambiguous terms, we conclude that a parent’s agreement to arbitrate is valid and enforceable against any tort claims asserted on a minor’s behalf.
We affirm the judgment of the Appellate Division and refer this matter to the arbitrator for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ALBIN, and WALLACE join in JUSTICE ZAZZALI’s opinion. JUSTICE LaVECCHIA filed a separate opinion concurring in part and dissenting in part, in which JUSTICE RIVERA-SOTO joins.
CONCUR BY: LaVECCHIA (In Part)
DISSENT BY: LaVECCHIA (In Part)
Justice LaVECCHIA, concurring in part and dissenting in part.
I am in full agreement with that portion of the majority’s decision that affirms enforcement of the parties’ agreement to subject [***46] their dispute to arbitration. I part company from my colleagues, however, in so far as they have chosen to invalidate the [**395] waiver of liability that the parties to this appeal executed as a condition of the minor Andrew’s use of defendant’s property to skateboard. In that respect, I am in substantial agreement with the Appellate Division dissent that was penned by Judge Fisher. Essentially, because a waiver of rights of the type entered into by these parties generally would be enforceable as against an adult, I see no reason why this Court should prevent a parent from ratifying such a waiver on behalf of a child, provided that a court or arbitrator determines that the release is reasonable.
[*347] Although the majority declines to express any view on whether the waiver would be invalid if enforced against an adult, it is noteworthy that the waiver does not appear to involve any of the grounds that New Jersey courts have heretofore invoked to invalidate an exculpatory waiver. For example, the waiver does not exempt defendant from liability for a “future intentional tort or willful act or gross negligence.” Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575, 580, 111 A.2d 425 (App.Div.1955). [***47] Nor does the waiver seek a release from any statutorily imposed duty. McCarthy v. NASCAR, Inc., 48 N.J. 539, 542, 226 A.2d 713 (1967). Furthermore, although the majority notes that “[e]xculpatory agreements have long been disfavored in the law,” that proposition has been invoked not to invalidate a waiver, as the Court does here, but rather to explain that such waivers should be narrowly construed:
Contracts of this nature are not favored by the law. They are strictly construed against the party relying on them and clear and explicit language in the contract is required to absolve a person from such a liability.
[McCarthy v. NASCAR, Inc., 87 N.J. Super. 442, 450, 209 A.2d 668 (Law Div.1965), aff’d, 90 N.J. Super. 574, 218 A.2d 871 (App.Div.1966), aff’d, 48 N.J. 539, 226 A.2d 713 (1967).]
Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247, 845 A.2d 720 (App.Div.2004) (stating more recently that because “the law does not favor exculpatory agreements,” “[a]ny doubts or ambiguities as to the scope of the exculpatory language must be resolved against the drafter”).
The fact that exculpatory waivers receive [***48] narrow construction from courts does not render such waivers unenforceable. Previously, we have stated that “[w]here [exculpatory agreements] do not adversely affect the public interest, exculpatory clauses in private agreements are generally sustained.” Mayfair Fabrics v. Henley, 48 N.J. 483, 487, 226 A.2d 602 (1967). Such clauses most commonly are used and enforced in a “commercial context,” Chem. Bank, N.A. v. Bailey, 296 N.J. Super. 515, 527, 687 A.2d 316 (App.Div.), certif. denied, 150 N.J. 28, 695 A.2d 671 (1997), and generally are valid and enforceable against individuals so long as the particular exculpatory clause does not involve a matter of [*348] public interest. McCarthy v. NASCAR, Inc., 48 N.J. 539, 543, 226 A.2d 713 (1967) (citing Boyd v. Smith, 372 Pa. 306, 94 A.2d 44, 46 (1953)). Many states also look to the notion of “public interest,” or other related concepts, when determining whether to uphold the validity of an exculpatory waiver. The California Supreme Court’s decision in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (1963), [***49] provides arguably the most widely accepted test applied to exculpatory agreements. Tunkl set forth six factors, one of which is whether “[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some [**396] members of the public.” Id. at 33, 383 P.2d at 445.
In my view, recreational activities such as skateboarding do not implicate the “public interest.” 1 The majority apparently does not assert otherwise, lodging no objection to the content of the waiver. Rather, the majority focuses on the fact that defendant is attempting to enforce this particular waiver of rights against a minor.
1 That conclusion is in accord with the majority of jurisdictions that have addressed the subject; they have concluded that recreational activities do not implicate the public interest. See, e.g.
Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383, 388 (2001) (stating that “skiing is not a ‘service of great importance to the public,’ much less a service of ‘practical necessity.'”). Courts have upheld liability waivers in the context of the following recreational activities: automobile racing, being a spectator at an automobile race, scuba diving, horseback riding, roller skating, skydiving, mountain biking, recreational sumo wrestling, weightlifting at a fitness center, motorcycle racing, go-cart racing, bicycling, and ski racing. Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 752-53 (2005) (Norcott, J., dissenting) (collecting cases). On the other hand, a minority of states have found that snow-tubing and skiing activities do implicate the public interest. See
Hanks, supra, 276 Conn. 314, 885 A.2d 734 (majority opinion); Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35 (Vt. 1997); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795 (1995). I find those cases unpersuasive. To find that recreational activities implicate the “public interest,” would strip that term of meaningful content.
[***50] Invoking the “best interests” of children under the parens patriae doctrine, the majority holds that the waiver is invalid as [*349] against public policy, and analogizes the instant situation to the requirement under Rule 4:44 that parental settlement of a minor’s post-injury claims receive judicial approval. There is an important difference between the present pre-injury waiver and the circumstances Rule 4:44 seeks to address. “Our rules for friendly settlements, R. 4:44-1 et seq., are intended to minimize or prevent conflicts of interest from occurring and to assure the reasonableness of settlements.” Zukerman v. Piper Pools, 232 N.J. Super. 74, 90, 556 A.2d 775 (App.Div.1989). See also
Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 377, 519 A.2d 893 (App.Div.1986) (noting that “[t]he purpose of the rule is not only to guard a minor against an improvident compromise but also to secure the minor against dissipation of the proceeds.”). Because the pre-injury setting does not involve the specter of a potential monetary settlement that looms over post-injury settlements, conflicts are of little [***51] concern in the pre-injury setting. See
Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 747 n.10 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 206 (1998); Angeline Purdy, Note, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor’s Future Claim, 68 Wash. L. Rev. 457 (1993).
Assuming, nonetheless, that a pre-injury contractual setting is similar to a post-injury setting, that does not support the conclusion that all waivers entered into on behalf of minors are unenforceable, a conclusion that simply goes too far. Rule 4:44 does not bar parental settlements. Rather, the rule requires judicial scrutiny “to ensure the reasonableness of settlements.” Zukerman, supra, 232 N.J. Super. at 90, 556 A.2d 775. If Rule 4:44 provides an appropriate analogy, then the standard of reasonableness that applies to post-injury settlements should apply to the review of pre-injury waivers.
I acknowledge that as a general rule, minors can, before they reach the age of majority, disaffirm contracts into which they enter. [**397] Mechanics Fin. Co. v. Paolino, 29 N.J. Super. 449, 453, 102 A.2d 784 (App.Div.1954) [***52] (stating that “[i]t is generally true that an [*350] infant may avoid his contract.”); Boyce v. Doyle, 113 N.J Super. 240, 241, 273 A.2d 408 (Law Div.1971) (stating that “[t]here can be no doubt but that contracts not of necessity may be voided by an infant either before or a reasonable time after he obtains his majority.”); Restatement (Second) of Contracts §§ 12, 14 (1981); 7 Corbin on Contracts § 27.2 (Perillo rev.2002); 5 Williston on Contracts § 9.5 (Lord ed., 4th ed.1993). That general rule is not altered by a parent’s signing of the contract on behalf of a minor. See 42 Am. Jur. 2d Infants § 46 (2000) (stating that “[a]s a general rule, an infant’s right to avoid his contract is not defeated by the fact that the contract was made by the infant and his or her parent, was made with the approval of his or her parent [or] was approved and ratified by his or her guardian”); Del Bosco v. U.S. Ski Ass’n, 839 F. Supp. 1470, 1474 n.2 (D.Colo.1993) (noting that “[c]ourts that have decided the issue have determined that the signature of a parent does not validate [***53] an infant’s contract.”).
However, contracts entered into by minors can be enforceable if the contract is approved by a court. Indeed, as noted, Rule 4:44 allows settlement agreements involving minors to be enforced so long as a reviewing court determines that the agreement is “reasonable.” Zukerman, supra, 232 N.J. Super. at 90, 556 A.2d 775. Beyond the settlement context, other states have enacted statutory schemes that bar minors from disaffirming certain contracts that have received judicial approval. See, e.g., Cal. Fam. Code § 6750-53 (2006) (covering entertainers and athletes); Cal. Lab. Code § 1700.37 (2006) (covering contracts between a minor and a talent agency); N.Y. Arts & Cult. Affr. Law § 35.03 (2006) (covering entertainers and athletes).
Although our Legislature has not yet enacted similar legislation, freedom of contract principles lead me to the conclusion that a pre-tort waiver entered into by a minor, or ratified by a parent on behalf of a minor, should be enforceable when a reviewing court or arbitrator determines that the waiver was reasonable and not [***54] based on unequal bargaining positions. See
Simmons v. Parkette Nat’l Gymnastic Training Ctr., 670 F. Supp. 140, 144 (E.D.Pa. [*351] 1987) (invalidating minor’s pre-injury waiver and relying, in part, on the fact that “there was no court involvement in the transaction”). If the reasonableness of the waiver is approved, then a minor should be barred from disaffirming the contract, an approach that is consistent with Rule 4:44. It differs somewhat from Rule 4:44 in that I would allow a trial court to review the “reasonableness” of a pre-tort waiver when a defendant, post-injury, raises the waiver as a defense to a suit brought by an injured party. 2
2 Under Rule 4:44 litigants must obtain court approval at the time of entry into the settlement agreement. Requiring judicial approval at the time that a minor enters into a pre-injury waiver would be impractical and inefficient. Review would have to be limited to situations when an injury actually occurs. The reviewing court, of course, would have to view the “reasonableness” of the waiver as of the time that the waiver was executed.
[***55] Post-injury review of pre-injury waivers eliminates the certainty that is provided by Rule 4:44 or, for example, the process established by statute in California and New York, all of which mandate that courts review contracts at the time they are executed. Potential defendants may, however, wish to bear the risk of such uncertainty given the benefits of any waiver ultimately upheld as reasonable. Absent action by the Legislature, I would permit court or arbitrator review and approval, as described, to validate a minor’s [**398] contract in respect of the type of pre-injury liability waivers presented herein. In so stating, I offer no judgment about what forms of liability defendant purported to waive by this exculpatory release. I would have allowed the arbitrator to sort out the reasonableness and the reach of the waiver executed by the parties.
Accordingly, I would affirm in part, reverse in part, and remand the matter for further proceedings.
Justice RIVERA-SOTO joins in this opinion. [*352]
Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)
William Todd Childress, By and Through his parents, Ira Childress and Joyce Childress, and Ira Childress and Joyce Childress, individually, Plaintiffs-Appellants, v. Madison County, Tennessee, The Madison County Board of Education, and the Young Men’s Christian Association, Jackson, Tennessee, a/k/a Y.M.C.A., Defendants-Appellees
[NO NUMBER IN ORIGINAL]
Court of Appeals of Tennessee, Western Section
777 S.W.2d 1; 1989 Tenn. App. LEXIS 48
January 24, 1989, Filed
SUBSEQUENT HISTORY: Application for Permission to Appeal Denied August 7, 1989.
PRIOR HISTORY: [**1] From the Circuit Court of Madison County, Tennessee, MADISON LAW NO. 5, The Honorable Andrew T. Taylor, Judge
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
COUNSEL: David Hardee, Linda L. Moore, Jackson, Attorneys for Plaintiffs-Appellants.
J. Tim Edwards, Memphis, Glassman, Jeter & Edwards, Attorney for Defendants-Appellees.
JUDGES: Highers, J. Nearn, Sp. J., concurs. Tomlin, P.J., W.S., concurs separately.
OPINION BY: HIGHERS
[*2] The plaintiffs, Ira Childress and Joyce Childress, brought this action individually and on behalf of their son, William Todd Childress, against Madison County and the Madison County Board of Education, alleging negligence which proximately caused personal injury to their son, a mentally handicapped student in Special Education at South Side High School. After a bench trial, the court found that the evidence did not preponderate in favor of the contentions of the plaintiffs. Plaintiffs are appealing from a judgment for the defendants.
At the time of the accident, William Todd Childress was a twenty-year old, nonverbal, severely retarded student. He traveled regularly with his class to the Y.M.C.A. to use recreational facilities, including a swimming pool. 1 [**2] The trips were supervised by a teacher and an aide, both employees of Madison County, and while at the pool, by a lifeguard employed by the Y.M.C.A.
1 The Y.M.C.A. was originally a party defendant, but was dismissed before trial and is not involved in this appeal.
Some of the trips were to allow students to train for the Special Olympics. Childress’ event consisted of walking the width of the shallow end of the swimming pool and handing a floating ball to an attendant.
On April 11, 1984, near the end of one of these training excursions to the Y.M.C.A., Childress was found on the floor of the pool at the point where the pool slopes from the shallow to the deep end. He was retrieved by the lifeguard and, after resuscitation began to breathe. He expelled water, vomited, and coughed, but otherwise appeared normal. An ambulance was called and Childress was taken to the hospital and admitted. Childress sustained injuries and incurred medical expenses as a result of this incident.
[*3] The teacher testified that there were three people who were responsible for observing the class — the teacher, the aide, and the lifeguard. The teacher testified that she was at the shallow end of the [**3] pool, the aide was on the other side of the pool, and the lifeguard was in and out of the pool at various points while offering instruction to students.
On this occasion the teacher stated that she was working with Childress. She described the events leading to the accident as follows:
Q. And toward the end of that hour what specifically were you doing with the children?
A. Well, the last thing that I did before I got out of the pool was work with Todd going back and forth across the pool.
Q. He would be walking back and forth across the pool?
Q. And when you ceased that activity, what did you do?
A. I told Todd to get out of the water and told all of the other children to get out of the water.
Q. Did Todd get out of the water?
A. I did not see Todd get out of the water. As the children were exiting the pool another student jumped in at the shallow end, who was a swimmer, to swim a lap and I walked along the edge of the pool as he swam to the deep end.
Q. Did you ever again see Todd after you told him to get out of the pool until he was found underwater?
* * * *
Q. Do you know who was watching Todd?
Q. Do you know if anybody was watching [**4] Todd?
A. We all had joint responsibility for watching the students.
Q. Do you know if anyone was watching Todd as he was getting out of the pool?
A. I would have no way of knowing.
In light of the testimony, we are of the opinion that the evidence preponderates against a finding of no negligence. [HN1] In non-jury matters the findings of fact of the trial court come to this court with a presumption of correctness and are reviewed de novo. Unless the evidence preponderates against the findings, we must affirm. T.R.A.P. 13(d). The trial court’s judgment in this case indicates that he found no negligence on the part of Madison County or the Madison County Board of Education. The proof shows, however, that the teacher and the aide were responsible for watching the students; that the teacher ordered students out of the pool, but did not actually see Childress exit; that she became involved in observing another student, and did not know whether Childress left the pool; and that she did not know whether anyone was watching Childress during the crucial period when he apparently went into water that was over his head, thereby sustaining the injuries and damages which gave rise to the complaint. [**5] It further appears that each of the attendants was involved in small group instruction and that no one actually scanned the pool in order to see whether the group as a whole had obeyed the instructions to leave the area. But for the fact that no one watched the pool without the distractions of other instruction, Childress would not have been injured.
Under these circumstances, we cannot say that plaintiffs have failed to make out a case by the greater weight or preponderance of the evidence.
The defendants have raised a further issue in this case, however, that the mother executed a release of all liability of these defendants. It is their contention that even if they were guilty of negligence the action is barred by the release of claims executed by the mother individually and on behalf of her son.
[HN2] It is well settled in this state that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960). This [*4] rule is subject to exception. A party cannot contract away his liability for willful or gross negligence. [**6] Memphis & Charleston Railroad Co. v. Jones, 39 Tenn. (2 Head) 517 (1859). Neither can a party contract away liability if the duty under which he acts is a public one. Cincinnati, New Orleans & Texas Pacific Railway Co. v. Saulsbury, 115 Tenn. 402, 90 S.W. 624, 626 (1905); Carolina, Clinchfield & Ohio Railway Co. v. Unaka Springs Lumber Co., 130 Tenn. 354, 170 S.W. 591, 594 (1914); Hartford Fire Insurance Co. v. Chicago, Milwaukee & St. Paul Railway Co., 175 U.S. 91, 20 S. Ct. 33, 44 L. Ed. 84 (1899).
[HN3] The existence of a public duty which would disallow giving effect to an exculpatory provision is determined by looking at several factors. If the service provided is the type which may generally be subject to public regulation then the duty probably exists. Smith v. Southern Bell, 364 S.W.2d at 958. Other factors include the degree to which the service is of practical necessity for some members of the public, whether the service is offered to any member of the public who seeks it or qualifies for it, whether one party has greater bargaining power than [**7] members of the general public, whether in exercising that bargaining power, the party presents a standardized “adhesion” contract making no provision whereby protection against negligence may be obtained, or whether the person or property of one party is placed under the control of the other. Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977) (adopting the rule of Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (1963)). [HN4] Particularly offensive in Tennessee are exculpation contracts executed by persons in professional vocations. Olson, 558 S.W.2d at 432.
[HN5] Persons and businesses which normally operate under a public duty are not bound by the exception and can execute valid exculpation contracts when the transaction in question is not under that public duty. Thus it has been held that a telephone company can execute such a contract as to its advertising services, Smith v. Southern Bell, 51 Tenn. App. 146, 364 S.W.2d 952, 957-958, citing Mitchell v. Southwestern Bell Telephone Co., 298 S.W.2d 520 (Mo. App. 1957), and a common carrier may contract [**8] against liability when executing a lease agreement, Cincinnati, N.O. & T.P.R.Co. v. Saulsbury, 90 S.W. at 626.
Analyzing the facts of this case under the foregoing rules, we find that the Special Olympics generally, and the services provided in this case specifically, are governed by the general rule and do not fall under the exception prohibiting exculpatory clauses. Although there are a number of circumstances which would otherwise bring the Special Olympics under the exceptions related to professional or public services, our analysis of all the cases cited reveals that the rule was intended to operate primarily in the marketplace. The Olson opinion in analyzing the public duty exception refers to “business,” “bargaining strength” in “economic settings,” “purchasers,” and payment of “additional fees to obtain protection against negligence” implying that there were fees in the first place. We are not here saying that the touchstone of the analysis is the existence or absence of business motivations, or pecuniary exchange. But when those considerations which are tied to economic factors are eliminated from the analysis, in this case by the absence [**9] of any business motivations, the remaining factors are insufficient to bring this case under the exception. Having determined that the [HN6] exculpatory clauses are generally valid as to the Special Olympics, we look now to the provisions of the clause used in this case.
The exculpatory language in this case is a part of a form document entitled “Tennessee Special Olympics Parental/Medical Release Form.” It is printed on an 8 1/2″ X 11″ sheet divided into three sections, the right half of the page being a medical release to be completed by a physician or registered nurse. The left half of the page is divided into two sections, the top being for completion by parents or teachers requiring statistical date such as age, clothing sizes, and addresses of the participant. [*5] The bottom section is entitled “Parent/Guardian Release.” As completed in the case at bar, the release is as follows:
I hereby give permission for the entrant named above to participate in the Special Olympics program — a sports-training, recreation, and competitive athletic program for mentally retarded children and adults.
I represent and warrant to you that [**10] the entrant is physically and mentally able to participate in Special Olympics, and I submit herewith a subscribed medical certificate.
Consent to Treatment:
You are authorized on my behalf and at my account to take such measures and arrange for such medical and hospital treatment as you may deem advisable for the health and well-being of the entrant without the need for further consent or permission.
Release of Claim:
I, the undersigned, individually and on behalf of the above-named entrant, acknowledge that the entrant will be using facilities at his/her own risk. I, on my own behalf, hereby release, discharge and indemnify Special Olympics, its directors, officers, employees, physicians, agents, and all volunteer personnel from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event. (Emphasis Supplied)
Permission to Publish:
Permission is hereby granted to use the name, likeness, voice and words of the entrant in television, radio, films, newspapers, magazines and other media, and in any form not heretofore described for the purposes and activities of Special Olympics [**11] and in appealing for funds to support such activities.
Mrs. Ira Childress (subscribed)
Relationship to Entrant
The emphasized language is at issue. The trial judge was of the opinion that Mrs. Childress “had executed a document releasing these defendants from liabilities as a result of any injuries that might occur in connection with the Special Olympics program.” This conclusion is in part correct.
[HN7] Exculpatory clauses purporting to contract against liability for intentional conduct, recklessness or gross negligence are unenforceable. See Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985) Memphis & Charleston Railroad Co., supra. We find that the defendants in this case have not exceeded the bounds of simple negligence, even in light of the higher standard of care under which they operate due to the students’ mental disability. See 65A C.J.S. Negligence § 141 (1966).
The parties in this case are the plaintiffs, Todd Childress, by his parents, and his mother, Joyce Childress, and his father, Ira Childress, individually; and the defendants, Madison [**12] County, and the Madison County Board of Education. The defendants were at the time of the incident in question acting through the teacher and her aide as agents or volunteers of the Special Olympics. The incident occurred during a Special Olympics training session, which the evidence shows was a “Special Olympics event” within the meaning of that phrase as used in the release form. While the evidence did show that there had been trips to the Y.M.C.A. pool which were independent of Special Olympics training, it is clear that the objective of this particular trip was to train for the Special Olympics and during this trip the teachers acted within the purview of duties they assumed as agents and/or volunteers of Special Olympics. Therefore, any liability for any actions taken must be analyzed as the actions of agents or volunteers of the Special Olympics as governed by the release form.
[*6] The plaintiffs assert on appeal that the evidence established that Mrs. Childress had signed a number of “permission slips” and that in executing the release form, Mrs. Childress thought that she was merely signing another permission slip. We find this assertion unsupportable by the evidence. [**13] The evidence shows that the permission slips which Mrs. Childress signed were mimeographed copies of a handwritten form. The release form was not mimeographed and was copied from a printed document not handwritten, not even typed. Besides the difference facially, the content of the release is very different from the content of the permission slips. Mrs. Childress signed the document, and cannot, under these circumstances assert she thought she was signing a permission slip and not a release. Even if that were a valid assertion, it would make no difference in the outcome of the case. [HN8] Although notice of an exculpatory clause is a prerequisite to its validity, Dodge v. Nashville Chattanooga & St. Louis Railway Co., 142 Tenn. 20, 215 S.W. 274 (1919), a party’s failure to read does not constitute a lack of notice to that party, Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn. App. 1976).
Of the plaintiffs, only Mrs. Childress, Todd’s mother signed the release form. The language, quoted above, is clear and unambiguous. Mrs. Childress acknowledged that Todd would be participating at his own risk. She further agreed to “release, discharge and [**14] indemnify Special Olympics, its . . . agents, and all volunteer personnel.” Therefore, the trial judge was correct in dismissing this case as to Mrs. Childress individually.
Mr. Childress did not himself sign the release form and there is no indication in the language of the form or in the manner in which Mrs. Childress signed that she did in fact, or was even authorized to, release or discharge the Special Olympics on Mr. Childress’ behalf. However, Mrs. Childress did clearly agree to indemnify the Special Olympics “from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event.” Therefore, to the extent the defendants are liable to Mr. Childress, Mrs. Childress, as indemnitor, must compensate him.
Neither did the remaining plaintiff, Todd Childress, sign the release form himself. Had he done so, being an incompetent, incapable of understanding the nature of his action, the execution could not be given effect. See 44 C.J.S. Insane Persons § 49 (1945). But, according to the language of the release, Mrs. Childress, as his mother and natural parent, acknowledged on Todd’s behalf [**15] that he would be participating at his own risk.
[HN9] The status of guardians of incompetent persons is similar to that of guardians of infants, especially in view of courts of equity. Id. The general rule is that a guardian may not waive the rights of an infant or an incompetent. 39 Am. Jur.2d, Guardian & Ward § 102 (1968); 42 Am. Jur.2d, Infants § 152 (1969). Specifically, [HN10] the Supreme Court of Tennessee long ago stated that a guardian cannot settle an existing claim apart from court approval or statutory authority. Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836). Spitzer v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915). Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (MD Tenn. 1963). It has also been held that [HN11] a guardian may not waive the statutory requirements for service of process on an infant or incompetent by accepting service of process on himself alone. Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).
The courts of other states have recognized this general rule in a number of circumstances including those cited above. See e.g. Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692, 695 (1956) [**16] (legal guardian’s acts do not estop ward from asserting rights in property); Ortman v. Kane, 389 Ill. 613, 60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract entered into by ward prior to incompetency); Stockman v. City of South Portland, 147 Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward’s property tax exemption); Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961) [*7] (guardian cannot waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d 370 (Colo. 1981) (ratification by parent of contract executed by child does not bind child); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal injury claim for ward without court approval); Natural Father v. United Methodist Children’s Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 519 A.2d 893 (1986) (guardian [**17] cannot settle personal injury claim for ward without court approval).
In Mississippi, the rule was expressed in broad terms by the Supreme Court in Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (1948): “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them.” See also Parker v. Smith, 150 Miss. 849, 117 So. 249, 250 (1928).
The Supreme Court of Connecticut has specifically held that [HN12] an agreement, signed by one of the parents of a minor as a condition to his being allowed to attend a camp, waiving the minor’s claims against a camp for damages in the event of an injury was ineffective to waive the rights of the minor against the defendant camp. Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958). The Supreme Court of Maine reached the same conclusion in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979). In Doyle, the court held that if the agreement in question were a release, it would be ineffective because a parent cannot release the child’s [**18] action.
We believe the rule stated above is in keeping with the protection which Tennessee has afforded to the rights of infants and minors in other situations. We, therefore, hold that Mrs. Childress could not execute a valid release or exculpatory clause as to the rights of her son against the Special Olympics or anyone else, and to the extent the parties to the release attempted and intended to do so, the release is void.
The indemnity provisions of the release are on a similar footing. [HN13] Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian. See Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961). “Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.” Id. See also Ohio Casualty Insurance Co. v. Mallison, 223 Or 406, 354 P.2d 800, 802-803 (1960). We are aware that the indemnity [**19] agreements in the two cases just cited were executed after the cause of action had arisen. This fact does not change the rule, and [HN14] indemnity provisions executed by the parent prior to a cause of action in favor of a child cannot be given effect. Were the rule otherwise, it would circumvent the rule regarding exculpatory clauses and the policy of affording protection in the law to the rights of those who are unable effectively to protect those rights themselves.
We do not deny that there are good and logical reasons for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed. As Helen Keller well said, “Security is mostly a superstition. It does not exist in nature, nor do the children of men as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure or nothing.” Partnow, Quotable Woman, 173 (1977). Ultimately, this case is a determination of who must bear the burden of the risk of injury to infants and minors.
[**20] It is not our intention, nor do we feel the result of this case will be, to put a chill on activities such as the Special Olympics. [HN15] The law is clear that a guardian cannot on behalf of an infant or incompetent, exculpate or indemnify against liability those [*8] organizations which sponsor activities for children and the mentally disabled. If this rule of law is other than as it should be, we feel the remedy is with the Supreme Court or the legislature.
The judgment of the trial court is affirmed as to Joyce Childress individually, and her case is dismissed. As to Ira Childress individually, and William Todd, by and through his parents, Ira Childress and Joyce Childress, this case is reversed and remanded for such further proceedings as may be required. Costs on appeal are assessed against appellees.
CONCUR BY: TOMLIN
SEPARATE CONCURRING OPINION
TOMLIN, P.J., W.S.
I readily concur in the excellent opinion written by my colleague. In addition, I would hold that even if the law in this state was to the effect that Mrs. [**21] Childress could execute a valid release as to the rights of her son, the release, as executed, as I interpret it, attempts to release only the mother’s rights and not those of her son. For instance, the first sentence, acknowledging that young Childress was using the facilities at his own risk, begins with the language: “I, the undersigned, individually and on behalf of the above-named entrant . . . .” [emphasis added] However, the language purporting to release the Special Olympics and others reads as follows: “I, on my own behalf, hereby release, discharge and indemnify . . . .” [emphasis added] It is obvious that the language last used purports only to release the rights of the “undersigned,” i.e., Mrs. Childress, and not those of her handicapped son.
Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340
Jahndee Hong, as Guardian/Next Friend of Jaden Hong, a minor, Plaintiff, v. Hockessin Athletic Club, and Eastern Athletic Clubs, Llc, a Delaware limited liability company, Defendants.
C.A. No. N12C-05-004 PLA
SUPERIOR COURT OF DELAWARE, NEW CASTLE
2012 Del. Super. LEXIS 340
June 4, 2012, Submitted
July 18, 2012, Decided
JUDGES: Peggy L. Ableman, Judge.
OPINION BY: Peggy L. Ableman
This 18th day of July, 2012, it appears to the Court that:
1. Defendants Hockessin Athletic Club (“HAC”) and Eastern Athletic Clubs, LLC (collectively, “Defendants”) have filed a Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6), asserting that Plaintiff’s negligence claim is barred by a liability waiver that was executed as part of the club’s Membership Agreement. For the reasons set forth below, the Court agrees that the liability waiver bars Plaintiff’s claim. Accordingly, Defendants’ Motion to Dismiss is GRANTED.
2. Plaintiff Jahndee Hong (“Hong”) brought this negligence action against Defendants on behalf of her son Jaden Hong (“Jaden”). On March 16, 2011, when he was three years old, Jaden fell from indoor playground equipment at the HAC and broke his right arm. 1 On October 30, 2010, Hong and her husband Minsuk Hong executed a Membership Application and Agreement (“Agreement”) with the HAC. The membership application listed the names and ages of the Hongs’ three children, including Jaden. The Agreement includes a waiver and release of [*2] liability. The Agreement defines a Member as “the individual signer and any and all other persons included in his/her membership with HAC.” Under the heading “WAIVER AND RELEASE OF LIABILITY AND INDEMNITY AGREEMENT,” the Agreement provides as follows:
Member hereby acknowledges that in using the facilities, programs and equipment of HAC, he/she does so entirely at his/her own risk and assume[s] the risk of any injury and/or damage while engaging in any physical exercise or activity or use of any club facility on the premises. This assumption of the risk included, without limitation, Member’s use of any exercise equipment (mechanical or otherwise), the locker room, sidewalk, parking lot, stairs, pool, whirlpool, sauna, steam room, racquet courts, lobby hallways, or any equipment in the facility. Member further agrees to assume the risk in participating in any activity, class, program, instruction, or any event sponsored by HAC. Insurance liability conditions and HAC prohibit any personal training lessons or services by non-HAC staff. Violations of such can result in membership termination.
By executing this Agreement, Member does HEREBY WAIVE, RELEASE AND FOREVER DISCHARGE, HAC and its [*3] past, present and future subsidiaries, affiliates, successors, predecessors, executors, committees, fiduciaries, trustee, employee benefit plans, workers compensation carriers, plan administrators, administrators, partners, employees, insureds, assigns, agents, and representatives in their personal and professional capacities (collectively “HAC”), from all claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees of any nature whatsoever, including attorneys’ fees and costs arising out of or connection with the aforementioned activities. Member further agrees to indemnify and hold harmless HAC from any claims, demands, injuries, damages, actions or causes of action, loss, liability, damage or cost which HAC may incur due to Members[‘] presence at or use of the facility. Member further agrees that the foregoing warranty, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the State of Delaware and that if any portion is deemed to be invalid, it is expressly agreed that the remaining terms shall remain [*4] in full legal force and effect.
MEMBER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS THAT IT IS A RELEASE OF LIABILITY AND EXPRESS ASSUMPTION OF RISK AND INDEMNIFICATION. MEMBER IS AWARE AND AGREES THAT BY EXECUTING THIS WAIVER AND RELEASE, HE/SHE IS GIVING UP THE RIGHT TO BRING LEGAL ACTION OR ASSERT A CLAIM AGAINST HAC FOR ITS NEGLIGENCE AND/OR FOR ANY DEFECTIVE PRODUCT THAT MAY BE IN THE FACILITY OR ON ITS PREMISES. BY SIGNING BELOW, MEMBER SIGNIFIES THAT HE/SHE HAS READ AND VOLUNTARILY SIGNED THIS AGREEMENT AND THAT NO ORAL REPRESENTATIONS, STATEMENTS OR INDUCEMENTS APART FROM THIS FOREGOING AGREEMENT HAVE BEEN MADE.
HAC contends that the liability waiver bars Plaintiff’s suit. Plaintiff responds that the waiver does not bar Plaintiff’s claim because the waiver, which refers to “all acts of active or passive negligence […] arising out of or in connection with the aforementioned activities,” is ambiguous and can be interpreted as applying only to the Member’s assumption of the risk of HAC’s negligence in participating in “any activity, class, program, instruction, or any event sponsored by HAC.”
1 Complaint at ¶ 8. The Complaint makes no specific [*5] allegations as to what was wrong with the playground equipment or how HAC’s negligence caused or contributed to Jaden’s injury. Rather, the Complaint alleges that HAC was negligent in that they (a) failed to take reasonable measures to make premises safe for invitees; (b) failed to properly and reasonably inspect the premises; (c) failed to take reasonable measures to make the premises safe; (d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and (e) were otherwise negligent. See Compl. at ¶ 9. The Court observes that [HN1] playground injuries are a fairly typical hazard of childhood and that the mere fact that a child broke his arm while at the playground ordinarily would not, by itself, demonstrate negligence on the part of the owner of the premises. The Court further notes that [HN2] Delaware’s rules of pleading prohibit plaintiffs from using a complaint as a fishing expedition to see whether a wrong has been committed. See, e.g., Leary v. Eschelweck, 2012 Del. Super. LEXIS 206, 2012 WL 1664236, at *2 (Del. Super. May 8, 2012). The Complaint as presented in this case comes dangerously close to running afoul of that rule.
3. The Court [*6] must first determine whether to adjudicate Defendants’ motion as presented or convert it to a motion for summary judgment. 2 [HN3] Superior Court Civil Rule 12(b)(6) provides that a motion to dismiss shall be treated as a motion for summary judgment under Rule 56 if “matters outside the pleadings are presented to and not excluded by the Court.” 3 HAC has submitted a copy of the signed liability waiver at issue, which Hong also addresses in her Response. Therefore, this motion will be treated as one for summary judgment.
2 Slowe v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at 2 (Del. Super. Dec. 4, 2008).
3 Super. Ct. Civ. R. 12(b)(6).
[HN4] When considering a motion for summary judgment, the Court examines the record to determine whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. 4 [HN5] Summary judgment will be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute or judgment as a matter of law is appropriate. 5
4 Super. Ct. Civ. R. 56(c).
5 Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879-80 (Del. Super. 2005).
4. In the factual context of this [*7] case, the question of whether the liability waiver that Hong signed as part of the Membership Agreement with HAC now bars her claim against Defendants is an easy one. In Slowe v. Pike Creek Court Club, which involved a guest who fell on a set of negligently maintained stairs in the swimming pool at the Pike Creek Court Club, a forerunner to the Hockessin Athletic Club, this Court held that [HN6] “a provision exonerating a party for its own negligence will only be given effect if the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release.” 6 [HN7] Delaware courts have held that the requirement of “crystal clear and unequivocal” language is satisfied where contractual provisions include language “specifically refer[ring] to the negligence of the protected party.” 7 The Court found that the liability release at issue in Slowe included no specific language indicating that the parties contemplated that the waiver would extend to PCCC’s own acts of negligence. 8 Moreover, as the Court noted in Slowe, PCCC’s liability release lacked “alternative language expressing that PCCC would be released for its own fault or wrongdoing,” concluding that the plaintiff [*8] could reasonably have concluded that the release would only relieve PCCC of liability for injuries or losses resulting from risks inherent in his use of the club. 9
6 Id. (quoting J.A. Jones Constr. Co. v. City of Dover, 372 A.2d 540, 553 (Del. Super. 1977)) (internal quotation marks omitted).
7 Id.; see also Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, 1986 WL 535, at *4 (D. Del. Dec. 31, 1986) (collecting cases).
8 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *3.
5. The Court similarly found that Slowe did not expressly assume the risk of PCCC’s negligence by signing the liability waiver because the waiver did not “clearly, explicitly and comprehensibly notify Slowe that he was assuming the risk that PCCC would negligently fail to maintain and inspect the premises.” 10 The Slowe Court left open the possibility, however, that “a properly-worded release might effect a waiver of premises liability.” 11
10 2008 Del. Super. LEXIS 377, [WL] at *5.
11 Id. The Slowe Court cited to Benedek v. PLC Santa Monica LLC, 104 Cal. App. 4th 1351, 129 Cal.Rptr. 2d 197 (Cal. Ct. App. 2002), which held that the defendant health club’s release barred plaintiff’s claim for negligence and premises liability arising out of injuries he sustained when he tried to catch a falling television set. The [*9] Benedek court reasoned, “[t]he release Benedek signed was clear, unambiguous, and explicit. It released [the health club] from liability for any personal injuries suffered while on [the health club’s] premises, ‘whether using exercise equipment or not.'” The court further noted that given the unambiguous broad language of the release, it “reached all personal injuries suffered by Benedek on [the health club’s] premises, including the injury Benedek suffered because of the falling television” and rejected as “not semantically reasonable” plaintiff’s argument that the release applied or should be interpreted to apply only to injuries suffered while actively using exercise equipment. 129 Cal.Rptr.2d at 204.
6. Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.” Plaintiff’s [*10] suggestion that “the aforementioned activities” specified in the second paragraph of the liability waiver applies only to activities sponsored by HAC, such as a group exercise class, is an implausible reading of the contract. Accordingly, the Court finds that the Membership Agreement and the included liability waiver and release bar Plaintiff’s claims against HAC.
7. Alternatively, notwithstanding the liability waiver, summary judgment should still be granted based on Plaintiff’s failure to make a prima facie case of negligence against Defendants. 12 The Complaint contains no specific allegations about the nature of HAC’s negligence and how it caused Jaden’s injury. Rather, the Complaint asserts, in vague and conclusory fashion, that Defendants negligently
(a) failed to take reasonable measures to make premises safe for invitees;
(b) failed to properly and reasonably inspect the premises;
(c) failed to take reasonable measures to make their premises safe;
(d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and
(e) were otherwise negligent. 13
In the absence of specific, particularized allegations about [*11] the nature of HAC’s negligence and how it caused Jaden’s injuries, the Complaint must fail.
12 To the extent that Plaintiff believes that she is entitled to discovery to meet her burden, the Court considers the allegations of negligence in the Complaint too vague and generic to allow Plaintiff to conduct what would essentially be a fishing expedition to discover evidence of Defendants’ unspecified negligence. See supra note 1. Summary judgment is therefore appropriate even at this early stage of the litigation.
13 Compl. at ¶9.
8. The Delaware Supreme Court recently upheld this Court’s grant of summary judgment in favor of a car dealership where a would-be customer walked into a plate-glass window at the dealership, noting that while owners and occupiers of commercial property have a duty to maintain their premises in a reasonably safe condition for their customers, patrons also have an affirmative obligation to exercise reasonable care while on the business owner’s premises. 14 [HN8] In a personal injury action, the plaintiff-customer bears the burden of proving that: (i) there was an unsafe condition on the defendant’s premises; (ii) the unsafe condition caused the plaintiff’s injuries; and [*12] (iii) the defendant had notice of the unsafe condition or should have discovered it by reasonable inspection. 15
14 Talmo v. Union Park Automotive, 38 A.3d 1255, 2012 WL 730332, at *3 (Del. Mar. 7, 2012) (TABLE); see also DiOssi v. Maroney, 548 A.2d 1361, 1366-7 (Del. 1988); Howard v. Food Fair Stores, New Castle, Inc., 57 Del. 471, 201 A.2d 638, 640, 7 Storey 471 (Del. 1964); Walker v. Shoprite Supermarket, Inc., 864 A.2d 929 (Del. 2004) (holding that it is negligent for a patron not to see what is plainly visible when there is nothing obscuring the patron’s view).
15 Talmo, 38 A.3d 1255, 2012 WL 730332, at *3.
9. Plaintiff here has failed to make any allegations that even raise a clear issue of fact with regard to Defendants’ negligence. Unlike in Slowe, Plaintiff has not alleged the existence of any dangerous condition on the premises that was the result of the health club’s failure to perform its duties, which were statutory and could not have been disclaimed by liability waiver in any event. 16 Here, Plaintiff has made no allegation that the playground equipment was defective, that the premises otherwise suffered from a latent defect that HAC should have known about and either repaired or warned its invitees [*13] to avoid, or that HAC failed to fulfill a duty to supervise Jaden. Rather, this appears to be a typical incident of a child who was injured on a playground. Such incidents, while unfortunate, do not indicate negligence on the part of the premises-owner any more than does the case of the man who walked into a plate-glass window at a car dealership. Accordingly, based upon Plaintiff’s failure to make a prima facie case of negligence under a theory of premises liability, summary judgment should be granted in favor of Defendants.
16 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *5-*6.
10. For all of the reasons set forth above, Defendants’ motion for summary judgment is GRANTED.
IT IS SO ORDERED.
/s/ Peggy L. Ableman
Peggy L. Ableman, Judge
A question posed on an Ask the Expert page has a very simple answer a very simple question.
The question asked was; must we allow adults into closed youth meetings? The simple answer is yes. There are no other answers available, no other answers to be considered, there is no other answer.
There may be other issues from various perspectives. However, we are talking about parental rights and minors.
You cannot keep a parent out of a meeting where their child is.
You can try to explain the issues; you can have the children discuss the issues with the parents. You can try anything but there is nothing else you can do other than talk and educate.
Look at this position from that of a parent. An adult is trying to tell me that I cannot go in that room where my child is. In my mind, the only real issue is will the parent slow down when they knock over the adult standing in their way.
The parent will have a lot of questions. What is going on behind that door? What is the adult trying to hide? What type of organization is my child in?
The question occurs when adults are attempting to give youth the freedom to make their own decisions and/or plan their own future. Adults intimidate and have a very difficult time staying out of the way. However, keeping adults from the room only creates additional barriers between the youth and adults. They believe that the only way they can accomplish anything is to bar adults.
The issue is not how to train the youth. The issue is how to educate and/or train the adults.
Parents need to be told both their child and by the adult volunteers what the purpose of the meeting or other function is and why they are requesting limited adult interaction. The meeting has to be done in a way that parents feel secure for their children. Finally, the meeting must be done so to protect the youth themselves and that youth protection guidelines are violated.
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