States that allow a parent to sign away a minor’s right to sue.
Posted: March 12, 2019 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: #AZ, #FL, #OH, #Zivich, AK, Alaska, Arizona, Atkins, Bismark Park District, CA, California, Cascade Mountain, City Of Coral Gables, City of Newton, CO, Colorado, Equine, Equine Safety Act, Florida, Global Travel Marketing, Gonzalez, Hohe, MA, Massachusetts, McPhail, Mentor Soccer Club, Minnesota, Minnesota Baseball Instructional School, Minor, minors, MN, Moore, NC, ND, New York, North Carolina, North Dakota, Ohio, Osborn, Parent Signature, Right to Sue, San Diego, San Diego Unified School District, Sharon, Shea, Swimwest Family Fitness Center, UT, Utah, WI, Wisconsin Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
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States that allow a parent to sign away a minor’s right to sue
Posted: June 7, 2017 Filed under: Alaska, California, Colorado, Florida, Maryland, Massachusetts, Minnesota, Minors, Youth, Children, North Dakota, Release (pre-injury contract not to sue) | Tags: #AZ, #FL, #OH, #Zivich, AK, Alaska, Arizona, Atkins, Bismark Park District, CA, California, Cascade Mountain, City Of Coral Gables, City of Newton, CO, Colorado, Equine, Equine Safety Act, Florida, Global Travel Marketing, Gonzalez, Hohe, MA, Massachusetts, McPhail, Mentor Soccer Club, Minnesota, Minnesota Baseball Instructional School, Minor, minors, MN, Moore, NC, ND, New York, North Carolina, North Dakota, Ohio, Osborn, Parent Signature, Release, Right to Sue, San Diego, San Diego Unified School District, Sharon, Shea, Swimwest Family Fitness Center, UT, Utah, WI, Wisconsin Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
What do you think? Leave a comment.
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Federal Judge holds that North Carolina law supports a release signed by the mother of a minor plaintiff to stop a lawsuit
Posted: May 4, 2015 Filed under: Challenge or Ropes Course, North Carolina, Release (pre-injury contract not to sue) | Tags: Cam Lejeune, Marine Corps Base Camp Lejeune, Minor, North Carolina, parent, Quasi-Estoppel, Release, Reserve Officers Training Corp., ROTC, United States District Court for the Eastern District of North Carolina, United States federal judge, Waiver Leave a commentStill not a decision by the NC Supreme Court which is controlling on this issue, however a very interesting case and a very staunch support of the idea that a parent can sign away a minor’s right to sue.
Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289
State: North Carolina, United States District Court for the Eastern District of North Carolina, Southern Division
Plaintiff: Morgan Kelly, Pamela Kelly, and Terry Kelly
Defendant: United States of America
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: For the Defendant
Year: 2014
A prior decision in this case was written about in North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations which reviewed Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741.
This is a decision by a federal court. Federal courts do not make decisions changing state law. Federal Courts can only apply state law to the facts in front of them. If the law is not settled it may surmise what the law it, however the courts of the state where the federal court sits, in this case North Carolina, are not bound by the law. Other websites have reported that federal courts can change the effect of the law in a state which is not true. That is why the precautionary warning on this decision. The North Carolina Supreme Court can rule on this issue at some future date and say the opposite of what this decision says. So until the issue of whether a parent can sign away a minor’s right to sue is reviewed by a state appellate or Supreme Court in North Carolina, not is set in stone.
A quick review of the facts: the minor plaintiff, age fifteen, was injured during a confidence course (obstacle course?) while attending a ROTC weekend at United States Marine Corps Base Camp Lejeune. The mother of the minor signed a release so the minor could attend the weekend.
There are several new facts which were argued in this phase of the case, and not in the prior decision, which are interesting. Allegedly the release was it was signed, was signed with the parent believing the twin sister was attending the camp. However at the time the release was signed there were no names on the release. The sister did not attend, the plaintiff did and the plaintiff filled in her name on the release. An information packet was sent to all attendee’s high schools which described the confidence course. However neither of the minor’s parents saw the packet.
All aspects of the trip were free for the cadets except they had to pay for their meals at the Camp Lejeune dining facility at a reduced rate and pay for anything the plaintiff purchased at the Post Exchange.
Prior to undertaking the confidence course the minor and other cadets completed two obstacle courses. The actual element the minor was injured on was the “slide for life.” While climbing the slide for life the minor fell suffering injuries.
Analysis: making sense of the law based on these facts.
The first issue was whether a parent could sign a release and release the minor’s right to sue. The court found in this decision and in the prior decision a parent could sign away a minor’s right to sue.
It does not appear that North Carolina courts have ruled on whether a liability waiver signed by a parent on behalf of a minor child is enforceable, yet numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors in the context of litigation filed against schools, municipalities, and clubs providing activities for children.
The court then reviewed other state law where the court’s had allowed a parent to sign away a minor’s right to sue. The court in reviewing those decisions found them analogous to these facts and applicable to this case.
… the court continues to find that these cases are analogous to the circumstances here, where the facilities and instruction of the NJROTC program were provided at no expense and students were charged only for personal purchases from the Post Exchange and for meals at discount rate.
The court found numerous reasons within those cases why the courts upheld the releases.
… the public is best served when risks or costs of litigation regarding such programs are minimized.
… public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity.
North Carolina, the law to be applied in this case by the court:
…recognized a public interest in respecting parents’ authority over certain life decisions for their children. North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children.
The court remains persuaded by the analysis of those courts upholding liability waivers signed by parents in the context of litigation against schools, municipalities and clubs, which either implicitly or explicitly found the risk presented by such waivers to be outweighed by interests in providing non-commercial activities and respecting parental authority.
The court also found that this case was not controlled by a public interest argument. The court also found that there was no recognized North Carolina public interest in voiding the release to protect minors over the wishes of the parents. “First, neither the defendant’s status as a government body, nor the volunteer status of a program’s personnel, are controlling factors in the analysis.”
The concluded this analysis and denied a public interest argument in the Federal Tort Claims Act (FTCA).
In turn, JROTC programs promote the community welfare by instilling the values and benefits noted above in the community’s children. Finally, the mere fact that the United States has waived its sovereign immunity through the FTCA does not mean that it should be denied the use of a waiver that other non-governmental volunteer or non-profit organizations could employ. On the contrary, the FTCA only makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.”
The FTCA is the statute that describes how and for what reasons the federal government, including the military can be sued.
The court then looked at the actual release to see if it met the law of North Carolina to be valid. The plaintiff argued there was no meeting of the minds, a basic requirement for a contract, which a release is. This is also referred to as a “mutual mistake.” “However, a unilateral mistake, unaccompanied by fraud, imposition, undue influence or like circumstances is insufficient to avoid a contract.”
Because the mistake, if any, was only a unilateral mistake, it was not enough to void the release. Unilateral mistake meaning only one part to the contract knew about the problem or was affected by the problem.
The plaintiff then argued that because the release was signed by the mother for one daughter who did not go but used by the second daughter who did go, the plaintiff, the release was void. The court found that even if the release was void for this reason, because the plaintiff’s took advantage of the opportunity, which could not be accepted without a release, they had ratified and affirmed the release.
North Carolina courts have held that, when a release is originally invalid or voidable, it may be ratified and affirmed by subsequent acts accepting the benefits.
Similarly, under the North Carolina theory of quasi-estoppel, also known as “estoppel by benefit,” a party who “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.”
The doctrine is grounded “upon a party’s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.”
Since the opportunities of the weekend could not be accepted or taken without a signed release, the plaintiff could not after accepting the benefits argue the release was void.
Here, the benefits of the Liability Waiver for plaintiff Pamela Kelly consisted of her daughter’s participation in the NJROTC orientation program, with the attendant benefits of introducing her to the culture, skills, and values that the NJROTC seeks to impart.
By accepting the benefit of her child’s attendance at the orientation session, knowing that a liability waiver was required for attendance, plaintiff Pamela Kelly cannot now disavow the effect of the instrument she signed that allowed her child to attend.
The next issue the plaintiff argued was the release did not identify the risks in the release. “As an alternative ground for denying summary judgment, plaintiffs argue that the Liability Waiver cannot be enforced because the government did not identify the risks that the form covered.”
The plaintiff’s argued they did not know their daughter would be engaging in the risky behavior and activities that caused her injury.
Consequently, they state they anticipated that plaintiff Morgan Kelly would only be visiting Camp Lejeune to observe equipment and other military activities, and that she would only be performing the same activities that she had performed in the past, such as marching in formations, drills, and “ground-based physical fitness training.
The court found this was not required under the law. Here the contract language was clear and the intention of the release for one party to waive the negligence and any accompanying risks of the other party was evident.
The heart of a contract is the intention of the parties,” which “must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed.” Liability waivers are disfavored under North Carolina law, and strictly construed against the parties seeking to enforce them. However, when the language is clear and unambiguous, construction of the agreement is a matter of law for the court, and the court cannot look beyond the terms of the contract to determine the parties’ intent.
The language was clear and unambiguous in its intent.
As such, the waiver provides ample notice to plaintiffs of the potential for a wide range of activities at the event, not limited in any way to marching, drills, or “ground-based physical fitness training.” Plaintiffs do not allege that they were affirmatively misled as to the nature of the activities that would comprise the event, or that they were prevented from inquiring into the activities or the associated risks.
The next argument was the plaintiff had disaffirmed the release by filing the complaint. “Plaintiffs also argue that summary judgment should be denied because plaintiff Morgan Kelly has disaffirmed it (by filing complaint) and because the Liability.” They buttressed this argument stating the language in the release referred to the plaintiff not a parent. However the court found the plaintiff’s had not provided any legal authority to support their argument.
Yet plaintiffs have not cited any case holding that a form such as that used here, which expressly waives both the claims of the child and her guardians, and which is signed by one of those guardians, cannot be enforced against the guardian who signed it. The court again holds that the Liability Waiver is enforceable to bar the claims of both Morgan and Pamela Kelly.
The next issue was whether the release, signed by the mother and effective against the claims of the mother and daughter also prohibited claims of the father.
The question remains whether the Liability Waiver is effective against the claims of plaintiff Terry Kelly, who did not sign the document, and denies ever seeing it prior to plaintiff Morgan Kelly’s orientation visit.
The court reasoned the release could not be used against the father if he did not know of the release. If you do not know of the contract you cannot be held to the contract even under a quasi-estoppel theory argued earlier in the case.
However the plaintiff’s themselves destroyed this argument. The release had both names of the parents written in by hand. The father in his deposition did not definitively state that the handwriting was not his. The plaintiff’s also argued the thought the release was not an original (which is not a valid evidentiary argument). The court then ordered the plaintiff’s had additional time to visually inspect the document and determine if it was the one they signed.
No additional arguments or support for the argument was made that the release was not the original or not signed by the parents. The court, then found that claim was no longer valid because it did not create a genuine issue concerning the release which is necessary to deny a motion for summary judgment.
Plaintiffs had opportunity to review the original Release Form, and to have it assessed by an expert if deemed necessary. An opponent of summary judgment “must produce more than frivolous assertions, unsupported statements, illusory issues and mere suspicions.”
The court then went back to the quasi-estoppel claim to further foreclose that argument by the plaintiff: “… because the record shows that plaintiff Terry Kelly accepted the benefits of the Release Form as it applied to the orientation visit.” The court further stated:”[A] party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement”
The court summed up that argument by stating:
The same principle operates here, where plaintiff Terry Kelly signed a Release Form surrendering claims related to his daughter’s participation in NJROTC training, then allowed his daughter to attend a NJROTC training orientation visit. On the evidence, there is no genuine issue that plaintiff Terry Kelly accepted that plaintiff Morgan Kelly’s “membership in the Naval Junior Reserve Officers Training Corps training,” included the orientation visit. In consideration of this training, including the orientation visit, he released “claims, demands, actions, or causes of action, due to . . . injury.” De-fendant reasonably relied on plaintiff Terry Kelly’s writing, in addition to his acquiescence to his [*35] daughter’s attendance at the orientation visit. Plaintiff Terry Kelly cannot be allowed to accept the benefits of the Release Form through his daughter’s attendance, while at the same time denying the release that was required as a condition of that attendance.
That eliminated the last claim and argument by the plaintiff and summary judgement was granted.
So Now What?
Although this decision may not be controlling in North Carolina until the North Carolina state courts rule on it, the court effectively argued each point why the release should be valid. On top of that, I do not know if this case is being appealed, which again, may change the outcome.
One point that was argued that I continually argue to do, to save the time and cost of defending a release is to put in the release the risks the plaintiff will be assuming. If the release is thrown out of court, you can get the release in front of the jury to prove the plaintiff assumed the risk of the injury.
This is great legal reasoning on release law. This is a good case to keep handy when you are arguing why a release is valid. Whether your state allows a parent to sign away a minor’s right to sue or not, the legal analysis used here can be used in many different release cases.
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, ROTC, Cam Lejeune, Reserve Officers Training Corp., Release, Waiver, Minor, Parent, Quasi-Estoppel,
States that allow a parent to sign away a minor’s right to sue
Posted: November 12, 2014 Filed under: Alaska, California, Colorado, Maryland, Minnesota, Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue), South Dakota | Tags: #AZ, #FL, #OH, #Zivich, AK, Alaska, Arizona, Atkins, Bismark Park District, CA, California, Cascade Mountain, City Of Coral Gables, City of Newton, CO, Colorado, Equine, Equine Safety Act, Florida, Global Travel Marketing, Gonzalez, Hohe, MA, Massachusetts, McPhail, Mentor Soccer Club, Minnesota, Minnesota Baseball Instructional School, Minor, minors, MN, Moore, NC, ND, North Carolina, North Dakota, Ohio, Osborn, Parent Signature, Release, Right to Sue, San Diego, San Diego Unified School District, Sharon, Shea, Swimwest Family Fitness Center, UT, Utah, WI, Wisconsin 1 CommentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
|
State |
By Statute |
Restrictions |
|
Alaska |
Alaska: Sec. 09.65.292 |
Sec. 05.45.120 does not allow using a release by ski areas for ski injuries |
|
Arizona |
ARS § 12-553 |
Limited to Equine Activities |
|
Colorado |
|
|
|
Florida |
Florida Statute § 744.301 (3) |
Florida statute that allows a parent to release a minor’s right to sue |
|
Virginia |
Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited |
Allows a parent to sign a release for a minor for equine activities |
|
Utah |
78B-4-203. Limitations on Liability for Equine and Livestock Activities |
Limited to Equine Activities |
|
|
By Case Law |
|
|
California |
Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990) |
|
|
Florida |
Allows a release signed by a parent to require arbitration of the minor’s claims |
|
|
Florida |
Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 |
Release can be used for volunteer activities and by government entities |
|
Massachusetts |
Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384 |
|
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Minnesota |
Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299 |
|
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North Dakota |
McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 |
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Ohio |
Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) |
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Wisconsin |
However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state |
|
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Maryland |
BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 |
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|
|
On the Edge, but not enough to really rely on |
|
|
North Carolina |
Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 |
Ruling is by the Federal District Court and only a preliminary motion |
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
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OK, this one just sent me over the edge. The USFS ticketed a rescuer for not getting out of the way. The rescuer had rappelled down and stabilized an injured climber on a ledge.
Posted: March 14, 2014 Filed under: North Carolina, Rock Climbing | Tags: Asheville North Carolina, Emergency Medical Services, Forest Service, Good Samaritan, Helicopter, Linville Gorge, Linville Gorge Wilderness, North Carolina, Pisgah National Forest, Rescue, Rock climbing, Sikorsky UH-60 Black Hawk, USFS 3 CommentsWatch the video or read the transcript then go make a comment! I would also suggest you contact your congressman and let them know the actions of the USFS are way out of line.
Read the transcript at the website Climber involved in rescue issued citation
On top of that, the Good Samaritan rescuer could have been liable to the injured climber if he had followed the instructions and abandoned the injured climber. As many of you know, once you start a rescue or first aid you must continue until relieved by a higher medical authority.
Besides, how is this going to be portrayed with the next rescuer? Will people be willing to help if they may face a ticket?
The biggest wake up should be to the US Forest Service. Most rescue plans for federal lands, USFS, BLM or NPS are dependent upon Good Samaritans. In many plans, the plans would not be possible without the involvement of persons standing by.
The National Forests in North Carolina contact info can be located here and is: Supervisor’s Office
160 Zillicoa St. Suite A
Asheville, NC 28801
828-257-4200
828-257-4200
You can email them here. Tell them you only know what you say on the newscast but their actions can have chilling effect on future rescues. Also, their actions might have put the victim at risk and subject the rescuer to liability.
What do you think? Leave a comment.
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North Carolina Skier Safety Act
Posted: August 28, 2013 Filed under: North Carolina | Tags: Alpine skiing, NC, Nordic, North Carolina, Platter lift, Ski, Ski Resort, Skier Safety Act, Terrain park, Winter sport Leave a commentNorth Carolina Skier Safety Act
General Statutes of North Carolina
CHAPTER 99C. ACTIONS RELATING TO WINTER SPORTS SAFETY AND ACCIDENTS
Go to the North Carolina Code Archive Directory
N.C. Gen. Stat. § 99C-1 (2013)
§ 99C-1. Definitions
When used in this Chapter, unless the context otherwise requires:
(1) Competitor. — A skier actually engaged in competition or in practice therefor with the permission of the ski area operator on any slope or trail or portion thereof designated by the ski area operator for the purpose of competition.
(1a) Freestyle terrain. — Constructed and natural features in ski areas intended for winter sports including, but not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes, half-pipes, quarter-pipes, and freestyle-bump terrain.
(2) Passenger. — Any person who is being transported or is awaiting transportation, or being conveyed on a passenger tramway or is moving from the disembarkation point of a passenger tramway or is in the act of embarking upon or disembarking from a passenger tramway.
(3) Passenger tramway. — Any device used to transport passengers uphill on skis or other winter sports devices, or in cars on tracks, or suspended in the air, by the use of steel cables, chains, belts or ropes. Such definition shall include such devices as a chair lift, J Bar, or platter pull, rope tow, and wire tow.
(4) Ski area. — All winter sports slopes, alpine and Nordic ski trails, freestyle terrain and passenger tramways, that are administered or operated as a ski area enterprise within this State.
(5) Ski area operator. — A person, corporation, or organization that is responsible for the safe operation and maintenance of the ski area.
(6) Skier. — Any person who is wearing skis or other winter sports devices or any person who for the purpose of skiing or other winter sports is on a designated and clearly marked winter sports slope, alpine or Nordic ski trail or freestyle terrain that is located at a ski area, or any person who is a passenger or spectator at a ski area.
(7) Winter sports. — Any use of skis, snowboards, snowshoes, or any other device for skiing, sliding, jumping, or traveling on snow or ice.
§ 99C-2. Duties of ski area operators and skiers
(a) A ski area operator shall be responsible for the maintenance and safe operation of any passenger tramway in his ski area and insure that such is in conformity with the rules and regulations prescribed and adopted by the North Carolina Department of Labor pursuant to G.S. 95-120(1) as such appear in the North Carolina Administrative Procedures Act. The North Carolina Department of Labor shall conduct certifications and inspections of passenger tramways.
A ski area operator’s responsibility regarding passenger tramways shall include, but is not limited to, insuring operating personnel are adequately trained and are adequate in number; meeting all standards set forth for terminals, stations, line structures, and line equipment; meeting all rules and regulations regarding the safe operation and maintenance of all passenger lifts and tramways, including all necessary inspections and record keeping.
(b) A skier shall have the following responsibilities:
(1) To know the range of the skier’s abilities to negotiate any ski slope or trail and to ski within the limits of such ability;
(2) To maintain control of the skier’s speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and obvious hazards and inherent risks, including variations in terrain, snow, or ice conditions, bare spots and rocks, trees and other forms of forest growth or forest debris;
(3) To stay clear of snow grooming equipment, all vehicles, pole lines, lift towers, signs, snowmaking equipment, and any other equipment on the ski slopes and trails;
(4) To heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others;
(5) To wear retention straps, ski brakes, or other devices to prevent runaway skis or snowboards;
(6) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, to avoid moving skiers already on the ski slope or trail;
(7) To not move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug or while such person is under the influence of alcohol or any narcotic or any drug;
(8) If involved in a collision with another skier or person, to not leave the vicinity of the collision before giving his name and current address to an employee of the ski area operator, a member of the ski patrol, or the other skier or person with whom the skier collided, except in those cases when medical treatment is required; in which case, said information shall be provided as soon as practical after the medical treatment has been obtained. If the other person involved in the collision is unknown, the skier shall leave the personal identification required by this subsection with the ski area operator;
(9) Not to embark upon or disembark from a passenger tramway except at an area that is designated for such purpose;
(10) Not to throw or expel any object from a passenger tramway;
(11) Not to perform any action that interferes with the operation or running of a passenger tramway;
(12) Not to use such tramway unless the skier has the ability to use it with reasonable safety;
(13) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties;
(14) Not to embark upon a passenger tramway without the authority of the ski area operator;
(15) If using freestyle terrain, to know the range of the skier’s abilities to negotiate the terrain and to avoid conditions and obstacles beyond the limits of such ability that a visible inspection should have revealed.
(c) A ski area operator shall have the following responsibilities:
(1) To mark all trails and maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or moving in the ski area;
(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;
(3) To indicate the relative degree of difficulty of a slope or trail by appropriate signs. Such signs are to be prominently displayed at the base of a slope where skiers embark on a passenger tramway serving the slope or trail, or at the top of a slope or trail. The signs must be of the type that have been approved by the National Ski Areas Association and are in current use by the industry;
(4) To post at or near the top of or entrance to, any designated slope or trail, signs giving reasonable notice of unusual conditions on the slope or trail;
(5) To provide adequate ski patrols;
(6) To mark clearly any hidden rock, hidden stump, or any other hidden hazard known by the ski area operator to exist;
(6a) To inspect the winter sports slopes, alpine and Nordic ski trails, and freestyle terrains that are open to the public at least twice daily and maintain a log recording: (i) the time of the inspection and the name of the inspector(s); and (ii) the general surface conditions, based on industry standards, for the entire ski area at the time of the inspections;
(6b) To post, in a conspicuous manner, the general surface conditions for the entire ski area twice daily; and
(7) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties.
§ 99C-3. Violation constitutes negligence
A violation of any responsibility placed on the skier, passenger or ski area operator as set forth in G.S. 99C-2, to the extent such violation proximately causes injury to any person or damage to any property, shall constitute negligence on the part of the person violating the provisions of that section.
§ 99C-4. Competition
The ski area operator shall, prior to the beginning of a competition, allow each competitor a reasonable visual inspection of the course or area where the competition is to be held. The competitor shall be held to assume risk of all course conditions including, but not limited to, weather and snow conditions, course construction or layout, and obstacles which a visual inspection should have revealed. No liability shall attach to a ski area operator for injury or death of any competitor proximately caused by such assumed risk.
North Carolina Sales Representative
Posted: March 17, 2013 Filed under: North Carolina | Tags: Commission (remuneration), IC, Independent Sales Rep, North Carolina, Rep, STATUTES Leave a commentGeneral Statutes of North Carolina
CHAPTER 66. COMMERCE AND BUSINESS
ARTICLE 27. SALES REPRESENTATIVE COMMISSIONS
Go to the North Carolina Code Archive Directory
§ 66-190. Definitions
The following definitions apply in this Article:
(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders, sales, or profits or as a specified amount per order or per sale.
(2) “Person” means an individual, corporation, limited liability company, partnership, unincorporated association, estate, trust, or other entity.
(3) “Principal” means a person who:
a. Manufactures, produces, imports, or distributes a product or service;
b. Contracts with a sales representative to solicit orders for the product or service; and
c. Compensates the sales representative, in whole or in part, by commission.
(4) “Sales representative” means a person who:
a. Contracts with a principal to solicit orders for products or services;
b. Is compensated, in whole or in part, by commission;
c. Is not a seller who complies with:
1. G.S. 25A-39 and G.S. 25A-40; or
2. Part 429 of 16 Code of Federal Regulations (January 1, 2003);
d. Repealed by Session Laws 2003-331, s. 1, effective October 1, 2003.
e. Is not an employee of the principal;
f. Does not sell or take orders for the sale of advertising services; and
g. Is not a person requiring a real estate broker’s or sales agent’s license under Chapter 93A of the General Statutes.
(5) “Terminate” and “termination” mean the end of the business relationship between the sales representative and the principal, whether by agreement, by expiration of time, or by exercise of a right of termination of either party.
§ 66-191. Payment of commissions; termination.
When a contract between a sales representative and a principal is terminated for any reason other than malfeasance on the part of the sales representative, the principal shall pay the sales representative all commissions due under the contract within 30 days after the effective date of the termination and all commissions that become due after the effective date of termination within 15 days after they become due. If the principal does not make payment as required by this section, the sales representative shall make a written demand upon the principal, sent by certified mail, for the commissions then due. The principal shall respond in writing to the demand within 15 days after the principal receives the written demand.
§ 66-192.1. Revocable offers of commission; entitlement
If a principal makes a revocable offer of a commission to a sales representative, the sales representative is entitled to the commission agreed upon if:
(1) The principal revokes the offer of commission;
(2) The sales representative establishes that the revocation was for the purpose of avoiding payment of the commission;
(3) The revocation occurs after the principal has obtained a written order for the principal’s product or service because of the efforts of the sales representative; and
(4) The principal’s product or service that is the subject of the order is provided to and paid for by a customer.
§ 66-190.1. Written contracts
The agreement or contract between a sales representative and a principal shall be in writing. The absence of a written agreement or contract shall not bar a cause of action by, or any remedy available to, a party.
§ 66-192. Civil liability
(a) A principal who fails to comply with the provisions of G.S. 66-191 or is shown to have wrongfully revoked an offer of commission under G.S. 66-192.1 is liable to the sales representative in a civil action for (i) all amounts due the sales representative plus exemplary damages in an amount not to exceed two times the amount of commissions due the sales representative, (ii) attorney’s fees actually and reasonably incurred by the sales representative in the action, and (iii) court costs.
(b) Where the court determines that an action brought by a sales representative against a principal under this Article is frivolous, the sales representative is liable to the principal for court costs and for attorney’s fees actually and reasonably incurred by the principal in defending the action.
(c) A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State shall be subject to personal jurisdiction as provided in G.S. 1-75.4.
(d) Nothing in this Article shall invalidate or restrict any other or additional right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
§ 66-193. Contracts void
A provision in any contract between a sales representative and a principal purporting to waive any provision of this Article, whether by expressed waiver or by a contract subject to the laws of another state, is void.
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Is there a duty to notify parents when an investigation is being conducted by the state to protect campers?
Posted: February 27, 2012 Filed under: Florida, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Summer Camp | Tags: Florida, Jurisdiction, Long-Arm Jurisdiction, Motion (legal), North Carolina, Parental Responsibility, summer camp, Youth Camp Leave a commentCamp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
Parents claim the camp was negligent in not informing them the state department of social services was going to or had interviewed their kids.
The problem is the case does not answer the question. This again, is a jurisdiction and venue motion that was appealed. The defendant camp was located in North Carolina. The plaintiffs were Florida’s residents. The only contact the camp had with Florida was 22% of its campers came from Florida, and one of the owners would spend a week in Florida every year drumming up business for the next summer.
The initial allegations giving rise to the litigation are very interesting. The plaintiff’s claim, the camp and the owners were negligent because the:
…Defendants had a duty, after being informed that the North Carolina County Department of Social Services desired to interview the Plaintiffs’ minor children, to notify the Plaintiffs of the fact that the minor children were to be interviewed by the North Carolina County Department of Social Services about possible child abuse….
There was a second allegation that a junior counselor had injured one of the plaintiff’s when he stepped on her feet. (Where they dancing?) This claim was not resolved in this appeal either.
Summary of the case
The plaintiff’s sued in Florida, and the defendants moved to dismiss. The trial court did not dismiss for lack of jurisdiction, and the defendants appealed. The defendants argued that they were:
…not subject to the jurisdiction of a Florida court and, even if jurisdiction existed in Florida, that North Carolina was an adequate alternative forum. Camp Illahee further argued that it was immune from suit under North Carolina law and that Florida’s impact rule required dismissal.
To support their argument the defendant must show the facts that prove their allegations. That is usually done by affidavits of the defendants and possibly others to prove the issue, or really, the lack of contact with the state.
Camp Illahee is a North Carolina corporation; the summer camp is located in North Carolina; Camp Illahee has no offices in Florida; it has no employees in Florida, although some of the employees who work at the camp during the summer are from Florida; Camp Illahee does no advertising in Florida by newspapers, radio, or television, but it has a one and one-half page posting on its internet website advising of “fall reunion and video shows.”
The court must then look at the State Long Arm Statute to determine if the facts make the defendant subject to the jurisdiction of the court. Under Florida’s law that analysis is:
…whether (1) there are sufficient jurisdictional facts to bring the action within the purview of the long-arm statute; and (2) the nonresident defendant involved has sufficient minimum contacts with Florida to satisfy constitutional due process requirements.
The Florida Long Arm Statute sets forth the minimum requirements to establish jurisdiction over out of state parties.
Section 48.193(1)(a)
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
Section 48.193(2):
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
The court then applies the information presented by the parties to the requirements of the statutes to see if the defendant has the necessary minimum contacts with the state to be sued in that state and subject to the laws of that state.
So Now What?
The trend from the courts is to allow you to be brought into distant states and their judicial system. This case is a rarity. This is another example of where the agreement between the camp and the parents or any parties to any outdoor recreation, should agree in advance to where any litigation will be developed.
As far as notifying parents of an interview by social services for possible child abuse, I think I would always lean towards notifying the parents. In fact, I think I would notify the parents immediately. A parent must believe that their child is safe. Whether the child is safe is put into question, if social services is investigating your camp.
This may be a PR nightmare or disaster for any camp or program dealing with minors. You will need to make sure you bring in PR professionals and probably your attorney if this situation arises.
You should also set up a program and working relationship where anyone can come and talk to you about problems. Hopefully, before social services had been called, you are on top of the issue and have dealt with it.
What do you think? Leave a comment.
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Camp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
Posted: February 27, 2012 Filed under: Florida, Jurisdiction and Venue (Forum Selection), Legal Case, Minors, Youth, Children, Summer Camp | Tags: Camp, Florida, Long-Arm Jurisdiction, Motion (legal), North Carolina, Recreation, summer camp Leave a commentCamp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
Camp Illahee Investors, Inc., a North Carolina Corporation, Appellant, v. Michael Blackman and Patrice Blackman, Individually and as the Parents, Natural Guardians and next best friends of Olivia Blackman and Sophie Blackman, minor children, and Frank Tindall and Elizabeth Tindall, Appellees.
Case No. 2D02-4324
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
November 19, 2003, Opinion Filed
PRIOR HISTORY: [**1] Appeal from nonfinal order of the Circuit Court for Hillsborough County; Daniel E. Gallagher, Senior Judge.
DISPOSITION: Reversed and remanded with directions.
COUNSEL: J. Gregory Giannuzzi of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellant.
Jeffrey A. Blau, Tampa, for Appellees Michael Blackman and Patrice Blackman, Individually and as the Parents, Natural Guardians and next best friends of Olivia Blackman and Sophie Blackman, minor children.
No appearance for Appellees, Frank Tindall and Elizabeth Tindall.
JUDGES: SILBERMAN, Judge. STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.
OPINION BY: SILBERMAN
OPINION
[*82] SILBERMAN, Judge.
Camp Illahee Investors, Inc., a North Carolina corporation, appeals a nonfinal [*83] order that denied its motion to dismiss for lack of personal jurisdiction. Because jurisdiction was not established under Florida’s long-arm statute, we reverse.
Appellees Michael and Patrice Blackman, individually and on behalf of their minor daughters, sued Camp Illahee and its owners, Frank and Elizabeth Tindall, for alleged torts committed in North Carolina while [**2] the Blackmans’ two daughters were attending summer camp in 2001. 1 In their first amended complaint, the Blackmans alleged that while their daughters were at the camp, someone placed an “anonymous child abuse call” to a county department of social services in North Carolina, whose representatives then interviewed the Blackmans’ daughters. The Blackmans alleged that the “Defendants had a duty, after being informed that the North Carolina County Department of Social Services desired to interview the Plaintiffs’ minor children, to notify the Plaintiffs of the fact that the minor children were to be interviewed by the North Carolina County Department of Social Services about possible child abuse.” The Blackmans also alleged that a junior counselor battered one of the daughters “by stepping on her feet and inflicting other physical injuries and mental abuse” on her.
1 The trial court dismissed the Tindalls from the litigation, and the Blackmans have not appealed that ruling.
Camp Illahee filed a motion to dismiss [**3] and asserted, among other grounds, that it was not subject to the jurisdiction of a Florida court and, even if jurisdiction existed in Florida, that North Carolina was an adequate alternative forum. Camp Illahee further argued that it was immune from suit under North Carolina law and that Florida’s impact rule required dismissal.
Camp Illahee submitted affidavits from the Tindalls, the owners and operators of the camp. The affidavits reflect that Camp Illahee is a North Carolina corporation; the summer camp is located in North Carolina; Camp Illahee has no offices in Florida; it has no employees in Florida, although some of the employees who work at the camp during the summer are from Florida; Camp Illahee does no advertising in Florida by newspapers, radio, or television, but it has a one and one-half page posting on its internet website advising of “fall reunion and video shows.”
Mrs. Tindall’s affidavit also reflects that she travels to various states to engage in the reunion and video shows, which are designed to have “the children get together to talk about Camp, and to become excited for camp the next summer.” The reunions take place in the homes of camp families, and the [**4] families receive a discount in the camp fee for hosting the reunions. The discounts amounted to .15% of Camp Illahee’s gross revenues in 2000 and .08% in 2001. In 2000 and 2001, 22% of the campers were from Florida.
Although Camp Illahee argues that its motion to dismiss could properly have been granted on any of the grounds raised in its motion, the key issue is whether the trial court had long-arm jurisdiction over Camp Illahee. [HN1] Our standard of review on the issue of personal jurisdiction over a foreign corporation is de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000). [HN2] Additionally, we are required to strictly construe Florida’s long-arm statute. See Esberger v. First Fla. Bus. Consultants, Inc., 338 So. 2d 561, 562 (Fla. 2d DCA 1976).
The pertinent facts relating to jurisdiction are not in dispute. [HN3] The determination [*84] of whether the trial court has personal jurisdiction over Camp Illahee turns on “whether (1) there are sufficient jurisdictional facts to bring the action within the purview of the long-arm statute; and (2) the nonresident defendant involved has sufficient minimum contacts with Florida to [**5] satisfy constitutional due process requirements.” Kin Yong Lung Indus. Co. v. Temple, 816 So. 2d 663, 666 (Fla. 2d DCA 2002); see also Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).
In its order denying the motion to dismiss, the trial court did not discuss this two-prong test. Instead, it simply stated, “Jurisdiction as to Camp Illahee Investors, Inc. will remain in Florida pursuant to the doctrine of forum non conveniens, as set forth in Fla. R. Civ. P. 1.061.” However, [HN4] before reaching the issue of forum non conveniens under Florida Rule of Civil Procedure 1.061, the trial court was required to first determine whether it had in personam jurisdiction in accordance with the two-prong test. See La Reunion Francaise, S.A. v. La Costena, 818 So. 2d 657, 659 (Fla. 3d DCA 2002) (concluding that there was no personal jurisdiction over the foreign defendant and, therefore, no need to reach other issues raised in the motion to dismiss, including the issue of forum non conveniens).
After reviewing the record and the applicable statutory language in light of the required two-prong jurisdictional analysis, we conclude [**6] that the trial court should have dismissed the Blackmans’ first amended complaint for lack of in personam jurisdiction. The allegations of the first amended complaint establish that the only possible bases for jurisdiction are under sections 48.193(1)(a) or 48.193(2) of the long-arm statute. Section 48.193(1)(a) [HN5] provides as follows:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
Section 48.193(2) [HN6] states as follows:
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
In the trial [**7] court, the Blackmans asserted that because Mrs. Tindall came to Florida one week a year for the reunion and video shows, Camp Illahee was conducting business in Florida. They also argued that the families that hosted the reunions were agents of Camp Illahee.
Concerning the agency argument, nothing in the record reflects that either an apparent or actual agency relationship existed between the host families and Camp Illahee. In particular, there was no showing that Camp Illahee made any representations that the host families were the agents of Camp Illahee, or that Camp Illahee, as principal, exercised control over the families, as agents. See Ilgen v. Henderson Props., Inc., 683 So. 2d 513, 514-15 (Fla. 2d DCA 1996) (discussing the elements necessary to establish apparent or actual agency); State v. Am. Tobacco Co., 707 So. 2d 851, 854 (Fla. 4th DCA 1998) (stating that control by the principal [*85] over the agent is a necessary element of agency).
The Blackmans’ second argument is premised on section 48.193(1), which confers jurisdiction for “any cause of action arising from the doing of” any of the enumerated items, such as conducting business in Florida. [**8] [HN7] By its terms, section 48.193(1) requires connexity between the defendant’s activities and the cause of action. Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002). Here, the record reflects that the connexity requirement has not been met because the Blackmans’ claims did not arise from the reunions and video shows that took place in Florida during one week per year. Rather, the claims arose out of alleged torts that occurred in North Carolina while the Blackmans’ daughters attended the camp.
Even if the undisputed facts fell within the ambit of section 48.193(1), Camp Illahee must have sufficient minimum contacts with Florida to satisfy due process requirements. See Venetian Salami, 554 So. 2d at 500. [HN8] The test is whether Camp Illahee’s conduct is such that it “should reasonably anticipate being haled into court” in Florida. See Venetian Salami, 554 So. 2d at 500 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)); see also Emerson v. Cole, 847 So. 2d 606, 608 (Fla. 2d DCA 2003). We agree with Camp Illahee that the limited contact between it [**9] and Florida as a result of the yearly reunion and video shows is insufficient to establish that it could reasonably anticipate being haled into court in Florida for the allegedly tortious conduct occurring in North Carolina.
A second potential basis for jurisdiction is section 48.193(2), which provides that a defendant is subject to a Florida court’s jurisdiction when the defendant “is engaged in substantial and not isolated activity within this state . . . whether or not the claim arises from that activity.” [HN9] This section “does not require connexity between a defendant’s activities and the cause of action.” Woods v. Nova Cos. Belize Ltd., 739 So. 2d 617, 620 (Fla. 4th DCA 1999). Additionally, if the defendant’s activities meet the requirements of this section, the due process requirement of minimum contacts is fulfilled. Id. However, the record before us does not support a conclusion that Camp Ilahee’s conduct constitutes substantial activity in Florida. See deMco Techs., Inc. v. C.S. Engineered Castings, Inc., 769 So. 2d 1128, 1132 (Fla. 3d DCA 2000) (stating that sporadic sales in Florida could not provide jurisdiction for litigation regarding [**10] an unrelated promissory note); Price v. Point Marine, Inc., 610 So. 2d 1339, 1341 (Fla. 1st DCA 1992) (noting that sporadic activities or visits to Florida consisting of the occasional solicitation of business in Florida do not constitute “substantial and not isolated activity”).
Because the undisputed facts do not demonstrate a basis for jurisdiction under Florida’s long-arm statute, we reverse and remand with directions that the trial court dismiss the Blackmans’ claims without prejudice to their refiling the claims in the appropriate jurisdiction. In light of our conclusion regarding the lack of in personam jurisdiction, the other grounds asserted by Camp Illahee in support of reversal are moot.
Reversed and remanded with directions.
STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.
PEAK: Preparing Educators for Adventures with Kids Conference
Posted: January 19, 2012 Filed under: Uncategorized | Tags: Camps, Cedar Mountain, Educators, NC, North Carolina, Outdoor Education, Peak, Program director, YMCA Leave a commentI wanted to make you aware of the Outdoor Education Conference PEAK: Preparing Educators for Adventures with Kids, February 16-18 in Cedar Mountain, NC. Check out http://www.campgreenville.org/peak.php for a list of presentations and to register. Also included in the conference is a Level 1 and Level 2 Challenge Course certification course and Project WET.
Looking forward to having you with us!
Susan W. Huter
Senior Program Director
YMCA Camp Greenville
PO Box 390Cedar Mountain, NC28718
(P) 864 836 3291 ext 106 (F) 864 836 3140
North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
Posted: November 23, 2011 Filed under: North Carolina, Youth Camps | Tags: Adventure travel, Camp Lejeune, JimMoss, Marines, Minor, NC, North Carolina, North Carolina Supreme Court, Ropes course Leave a commentKelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
However, the decision was not made by the North Carolina Supreme Court and not a ruling by the court and the actual legal issue.
In this case the plaintiff, a fifteen year old minor went on an orientation visit to Camp Lejeune as part of her Navy Junior Reserve Officer Training Corps program at her high school. While participating in the confidence course (or what used to be called the obstacle course) she was injured. Her injuries were not identified in the lawsuit; however, she was suing for $10,000,000.00.
The minor could not attend the camp unless she and her mother signed the release.
The reason for the decision was based on the plaintiff’s motion to strike the defendants’ answers. This is a preliminary motion that attempts to knock out the specific defenses of the defendant. One of the defenses the plaintiff attempted to eliminate was the defense of release.
This order and decision from the court are not a final decision on the merits of the case. This is only a preliminary motion; however, it is interesting in how the court ruled on the issue of the mother signing the release.
So?
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The court reviewed release law in general and found that in North Carolina, releases are generally enforceable. Releases are strictly construed against the party attempting to enforce them (the defendants). To be valid in North Carolina a release cannot be enforced if it:
(1) is violative of a statute;
(2) is gained through inequality of bargaining power; or
(3) is contrary to a substantial public interest.
The release in this case did not violate any of the above three prohibitions.
The court then looked at whether the release signed by the minor plaintiff was valid. Under North Carolina law, like all other states, a release signed by a minor is voidable by the minor unless it meets rare exceptions. The exception to the contract prohibition is contracts for necessities or when a statute allows a minor to sign a contract. Here, neither of these issues was the reason the release was signed. So the release signed by the minor has no value and is void.
The court then looked at the release signed by the mother. The court found that a minority of states that had looked at the issue, had found releases for minors signed by parents so the minor could engage in “non-profit activities sponsored by schools, volunteers, or community organizations.”
The analysis then looked at whether the North Carolina Supreme Court would hold the same way. The activity the minor engaged in was extracurricular and voluntary and done for the benefit of the child. As such the court held the North Carolina Supreme Court would hold the release valid.
So Now What?
Before a rule, law can be cast in wet concrete (nothing is ever cast in stone) it must be decided by the highest court in the state. Here, the federal court looking at the issue made the decision. The North Carolina Supreme Court at some later time could decide that this is not the way it wants to rule.
Furthermore, the ruling is not that the release signed by the mother is valid. The ruling is the defense of release being argued by the defendant is not thrown out by the court. The legal issue of whether or not the release is a valid release under North Carolina law is still at issue.
The decision is important and will probably be followed later in the case, but there is no guaranty. However, it is a positive step to stop lawsuits.
What do you think? Leave a comment.
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