Kentucky determines that a parent cannot sign away a child’s right to sue.

Courts are allowed to pick and choose the case law they relied upon and to distinguish or ignore the case law the court does not like. In this case, the Kentucky Supreme Court ignored law it did not like or simply found a way around the case law it did not want to agree with.

Citation: E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697

State: Kentucky, Supreme Court of Kentucky

Plaintiff: Kathy Miller, as Next Friend of Her Minor Child, E.M.

Defendant: House of Boom Kentucky, LLC

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff

Year: 2019

Summary

Kentucky Supreme Court rules that a parent cannot sign away a minor’s right to sue.

Facts

House of Boom, LLC (“House of Boom”) is a for-profit trampoline park located in Louisville, Kentucky. The park is a collection of trampoline and acrobatic stunt attractions. On August 6, 2015, Kathy Miller purchased tickets for her 11-year-old daughter, E.M., and her daughter’s friends to go play at House of Boom. Before purchasing the tickets, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability.

Once Miller checked the box, E.M. participated in activities at House of Boom. She was injured when another girl jumped off a three-foot ledge and landed on E.M’s ankle, causing it to break. Miller, as next friend of her daughter, sued House of Boom for the injury. House of Boom, relying on Miller’s legal power to waive the rights of her daughter via the release, moved for summary judgment. The Western District of Kentucky concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and requested Certification from this Court which we granted. Both parties have briefed the issue and the matter is now ripe for Certification.

So, the plaintiff sued in Federal District Court. Because the issue of whether or not a parent could sign away a minor’s right to sue had not been reviewed by the Kentucky Supreme Court, the federal district court asked the Kentucky Supreme Court to review the case. The Kentucky Supreme court did with this decision.

Analysis: making sense of the law based on these facts.

The sole question before the court was whether a parent could sign away a minor’s right to sue.

The question before this Court is whether a parent has the authority to sign a pre-injury exculpatory agreement on behalf of her child, thus terminating the child’s potential right to compensation for an injury occurring while participating in activities sponsored by a for-profit company.

The court in reviewing the case law from other states on this issue decided the cases had been determined in one of four categories.

House of Boom categorizes these decisions in as those that enforced the waiver and those that did not, but the decisions of those jurisdictions more accurately fall into four distinct categories: (1) jurisdictions that have enforced a waiver between a parent and a for-profit entity; (2) jurisdictions that have enforced waivers between a parent and a non-profit entity; (3) jurisdictions that have declared a waiver between a parent and a for-profit entity unenforceable; and (4) jurisdictions that have declared a waiver between a parent and a non-profit entity unenforceable.

By making this distinction in the cases to start, the court immediately eliminated much of the case law supporting the defendants. In most states, a non-profit has no different legal duty to patrons then a for profit, and none that I can find in Kentucky. However, by using these categories the court was able to place this case in the category with only one other decision that could support the defendant.

House of Boom is a for-profit trampoline park, and eleven out of twelve jurisdictions that have analyzed similar waivers between parents and for-profit entities have adhered to the common law and held such waivers to be unenforceable.

The court then justified it classifications and reasoning by stating a commercial entity had more ways to deal with the cost of the liability than a non-profit.

A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions.

However, none of the factors listed above are any different from the situations or requirements to do business for a non-profit operation.

The court then fell back on a legal fallacy that plaintiffs have been arguing for years.

A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment. “If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.

However, no cases I’ve read have ever stated that the injury was caused because the defendant did not have to deal with liability issues. Any breach of a duty of care that has occurred were not across the board, just spotty.

The court concluded:

Under the common law of this Commonwealth, absent special circumstances, a parent has no authority to enter into contracts on a child’s behalf.

So Now What?

The plaintiff’s mother purchased tickets for several kids. So, for the majority of the children, the release was void to begin with. One release was signed for multiple possible plaintiffs by someone who did not have the legal authority to sign on their behalf anyway.

The category’s trick was interesting. By restricting the cases it reviewed to artificial categories the Kentucky Supreme Court eliminated several cases that supported the defendant’s position. On top of that, it also then ignored cases after the initial cases it reviewed that supported the use of a release signed by a parent for a child in for-profit or commercial situations.

The Ohio Supreme Court found that a parent could sign away a minor’s right to sue in a non-profit case: Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998). Subsequent decisions in Ohio by the appellate courts have also upheld a release signed by the parent of the injured child: Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

By placing blinders on the case law it was looking at, it is a lot easier to ignore decisions you do not want to deal with.

It is disturbing when a court, weaves its way through case law to reach a conclusion it could have easily reached without circular path. Either the court works its way around lots of decisions or the court realized this decision was going against the general flow of law in the US on this issue and wanted to justify its decision.

Statutes and prior law in Kentucky say a parent’s rights are not absolute in controlling their child and thus a parent cannot sign away their minor child’s right to sue.

What do you think? Leave a comment.

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New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly.

The arbitration agreement in this case did not state how long the agreement was valid for, so the court held it was only valid for the day it was signed.

Citation: Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

State: New Jersey: Superior Court of New Jersey, Appellate Division

Plaintiff: Lorianne Weed and Scott Trefero as parents and natural guardians of A.M., a minor,

Defendant: Sky NJ, LLC a/k/a and/or d/b/a Skyzone Moorestown and/or a/k/a and/or d/b/a Skyzone and David R. Agger

Plaintiff Claims: Contract failed to compel arbitration

Defendant Defenses: Arbitration

Holding: For the Plaintiff

Year: 2018

Summary

When a parent cannot sign a release for a minor, because the states don’t enforce them, one option may be a binding arbitration agreement. Arbitration usually does not allow massive damages, is cheaper and quicker than going to trial.

However, your arbitration agreement, like a release, must be written in a way to make sure it is effective. This one was not, and the plaintiff can proceed to trial.

Facts

Plaintiff visited the trampoline facility in July 2016. Entrance to the park is conditioned on all participants signing a “Conditional Access Agreement, Pre-Injury Waiver of Liability, and Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate” (the Agreement). Weed executed the agreement on behalf of her son in July 2016.

Plaintiff returned to the facility with a friend in November 2016, and was injured while using the trampolines during a “Glow” event, which plaintiff submits used different and less lighting than was present at his earlier visit. Plaintiff entered the facility in November with an agreement signed by his friend’s mother on behalf of both her daughter and A.M.[2] In an affidavit submitted by Weed in opposition to the motion, she stated that she was unaware that her son was going to the facility at the time of the November visit.

After Weed filed suit on behalf of her son, defendants moved to compel arbitration pursuant to the agreement. Defendants argued that the agreements contained “straightforward, clear, and unequivocal” language that a participant was waiving their right to present claims before a jury in exchange for conditional access to the facility. They asserted that the first agreement signed by Weed remained in effect at the time of plaintiff’s subsequent visit in November as there was no indication that it was only valid for the one day of entry in July. Finally, defendants contended that any dispute as to a term of the agreement should be resolved in arbitration.

Plaintiff opposed the motion, asserting that nothing in the first agreement alerted Weed that it would remain in effect for either a certain or an indefinite period of time. To the contrary, defendants’ policy of requiring a new agreement to be signed each time a participant entered the park belied its argument that a prior agreement remained valid for a period of time.

On May 19, 2017, Judge Joseph L. Marczyk conducted oral argument and denied the motion in an oral decision issued the same day. The judge determined that the first agreement did not apply to the November visit because it did not contain any language that it would remain valid and applicable to all future visits. Therefore, there was no notice to the signor of the agreement that it would be in effect beyond that specific day of entry, and no “meeting of the minds” that the waiver and agreement to arbitrate pertained to all claims for any future injury.

As for the second agreement, the judge found that there was no precedent to support defendants’ contention that an unrelated person could bind plaintiff to an arbitration clause. This appeal followed.

Analysis: making sense of the law based on these facts.

In a state where there are no defenses except assumption of the risk for claims by minor’s arbitration can be a good way to speed up the process and limit damages. Each state has laws that encourage arbitration and, in most cases, create limits on what an arbitration panel (the people hearing the case) can award in damages. In man states, arbitration judges cannot award punitive damages.

You need to check your state laws on what if any benefits arbitration provides.

However, if you can use a release, the release is the best way to go because it cuts off all damages. Many times, in arbitration damages are awarded, they are just less.

To determine which states do not allow a parent to sign away a minor’s right to sue see States that allow a parent to sign away a minor’s right to sue.

The best way of dealing with minor claims is the defense of assumption of the risk. However, this takes more time on the front end in making sure the minor participants understand the risk before embarking on the activity.

There were two issues before the appellate court: Whether the first agreement signed by the mother of the injured plaintiff extended beyond the day it was signed. The second issue was whether a second agreement signed by a friend, not a parent, legal guardian or someone acting under a power of attorney had any legal validity.

The first agreement was silent as to how long it was valid. There was no termination date, (which is a good thing) and nothing to indicate the agreement was good for a day or a lifetime. Because the contract was blank as to when the agreement was valid, the court ruled against the creator of the contract.

There is no evidence in the record before us to support defendants’ argument as the agreements are silent as to any period of validity. Defendants drafted these agreements and required a signature from all participants waiving certain claims and requiring submission to arbitration prior to permitting access to the facility. Any ambiguity in the contract must be construed against defendants.

When a contract is written any issues are held against the writer of the agreement. Here because the contract had no end date or did not say it was good forever, there was a gap in the agreement that was held against the defendant as the writer of the agreement.

So, the court ruled the agreement signed by the mother was only valid on the day it was signed and was not valid the second time when the minor came in and was injured.

The second argument made by the defendant was the friend who signed for the minor on the second visit signed an agreement that should be enforced and compel arbitration.

The court laughed that one out the door.

We further find that defendants’ argument regarding the November agreement lacks merit. The signor of that agreement was neither a parent, a legal guardian, nor the holder of a power of attorney needed to bind the minor plaintiff to the arbitration agreement. Defendants’ reliance on Hojnowski v. Vans Skate Park, is misplaced. While the Court found that a parent had the authority to waive their own child’s rights under an arbitration agreement in Hojnowski, there is no suggestion that such authority would extend to a non-legal guardian. Not only would such a holding bind the minor to an arbitration agreement, it would also serve to bind the minor’s parents, waiving their rights to bring a claim on behalf of their child. We decline to so hold.

So Now What?

New Jersey law is quite clear. A parent cannot sign away a minor’s right to sue, Hojnowski v. Vans Skate Park. Consequently, arbitration was probably the way to go. In this case, one little slip up made the arbitration agreement worthless.

The one flaw in using an arbitration agreement is you could use a release to stop the claims for a parent. So, you should write a release that stops the claims of the parents/legal guardians and compels arbitration of the minor’s claims. Those get tricky.

And as far as another adult signing for a minor who is not their child, that is always a problem. A parent can sign for a minor, to some extent, and a spouse can sign for another spouse in certain situations. An officer of a corporation or a manager of a limited liability company can sign for the corporation or company. The trustee can sign for a trust, and any partner can sign for a partnership. But only you can sign for you.

The issue that outdoor businesses see all day long is a volunteer youth leader take groups of kids to parks, amusement rides and climbing walls, etc. Neighbors take the neighborhood kids to the zoo, and friends grab their kids’ friends to take on vacation. Unless the adult has a power of attorney saying they have the right to enter agreements on behalf of the minor child, their signature only has value if they are a celebrity or sports personality.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

Lorianne Weed and Scott Trefero as parents and natural guardians of A.M., a minor, Plaintiffs-Respondents, v. Sky NJ, LLC a/k/a and/or d/b/a Skyzone Moorestown and/or a/k/a and/or d/b/a Skyzone and David R. Agger, Defendants-Appellants.

No. A-4589-16T1

Superior Court of New Jersey, Appellate Division

February 22, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 18, 2018

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2790-16.

Marco P. DiFlorio argued the cause for appellants (Salmon, Ricchezza, Singer & Turchi LLP, attorneys; Joseph A. Ricchezza and Marco P. DiFlorio, on the briefs).

Iddo Harel argued the cause for respondents (Ross Feller Casey, LLP, attorneys; Joel J. Feller and Iddo Harel, on the brief).

Before Judges Currier and Geiger.

PER CURIAM

Defendants Sky NJ, LLC a/k/a/ Sky Zone Moorestown and David Agger (defendants) appeal from the May 19, 2017 order denying their motion to compel arbitration in this personal injury suit brought by plaintiffs after A.M.[1] suffered severe injuries while jumping on a trampoline at defendants’ facility. After a review of the presented arguments in light of the record before us and applicable principles of law, we affirm.

Plaintiff visited the trampoline facility in July 2016. Entrance to the park is conditioned on all participants signing a “Conditional Access Agreement, Pre-Injury Waiver of Liability, and Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate” (the Agreement). Weed executed the agreement on behalf of her son in July 2016.

Plaintiff returned to the facility with a friend in November 2016, and was injured while using the trampolines during a “Glow” event, which plaintiff submits used different and less lighting than was present at his earlier visit. Plaintiff entered the facility in November with an agreement signed by his friend’s mother on behalf of both her daughter and A.M.[2] In an affidavit submitted by Weed in opposition to the motion, she stated that she was unaware that her son was going to the facility at the time of the November visit.

Both agreements required the submission of all claims to binding arbitration and contained the following pertinent language:

I understand that this Agreement waives certain rights that I have in exchange for permission to gain access to the [l]ocation. I agree and acknowledge that the rights I am waiving in exchange for permission to gain access to the [l]ocation include but may not be limited to the following:

a. the right to sue [defendants] in a court of law;

b. the right to a trial by judge or jury;

c. the right to claim money from [defendants] for accidents causing injury within the scope of the risk assumed by myself;

d. the right to claim money from [defendants] for accidents causing injury unless [defendants] committed acts of gross negligence or willful and wanton misconduct; and

e. the right to file a claim against [defendants] if I wait more than one year from . . . the date of this Agreement.

Waiver of Trial, and Agreement to Arbitrate

IF I AM INJURED AND WANT TO MAKE A CLAIM AND/OR IF THERE ARE ANY DISPUTES REGARDING THIS AGREEMENT, I HEREBY WAIVE ANY RIGHT I HAVE TO A TRIAL IN A COURT OF LAW BEFORE A JUDGE AND JURY. I AGREE THAT SUCH DISPUTE SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF THIS AGREEMENT AND WILL BE DETERMINED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR TO BE ADMINISTERED BY JAMS[3] PURSUANT TO ITS COMPREHENSIVE ARBITRATIONRULES AND PROCEDURES.I further agree that the arbitration will take place solely in the state of New Jersey and that the substantive law of New Jersey shall apply. I acknowledge that if I want to make a claim against [defendants], I must file a demand before JAMS. … To the extent that any claim I have against [defendants] has not been released or waived by this Agreement, I acknowledge that I have agreed that my sole remedy is to arbitrat[e] such claim, and that such claim may only be brought against [defendants] in accordance with the above Waiver of Trial and Agreement to Arbitrate.

After Weed filed suit on behalf of her son, defendants moved to compel arbitration pursuant to the agreement. Defendants argued that the agreements contained “straightforward, clear, and unequivocal” language that a participant was waiving their right to present claims before a jury in exchange for conditional access to the facility. They asserted that the first agreement signed by Weed remained in effect at the time of plaintiff’s subsequent visit in November as there was no indication that it was only valid for the one day of entry in July. Finally, defendants contended that any dispute as to a term of the agreement should be resolved in arbitration.

Plaintiff opposed the motion, asserting that nothing in the first agreement alerted Weed that it would remain in effect for either a certain or an indefinite period of time. To the contrary, defendants’ policy of requiring a new agreement to be signed each time a participant entered the park belied its argument that a prior agreement remained valid for a period of time.

On May 19, 2017, Judge Joseph L. Marczyk conducted oral argument and denied the motion in an oral decision issued the same day. The judge determined that the first agreement did not apply to the November visit because it did not contain any language that it would remain valid and applicable to all future visits. Therefore, there was no notice to the signor of the agreement that it would be in effect beyond that specific day of entry, and no “meeting of the minds” that the waiver and agreement to arbitrate pertained to all claims for any future injury.

As for the second agreement, the judge found that there was no precedent to support defendants’ contention that an unrelated person could bind plaintiff to an arbitration clause. This appeal followed.

“[O]rders compelling or denying arbitration are deemed final and appealable as of right as of the date entered.” GMAC v. Pittella, 205 N.J. 572, 587 (2011). We review the judge’s decision to compel arbitration de novo. Frumer v. Nat’1 Home Ins. Co., 420 N.J.Super. 7, 13 (App. Div. 2011). The question of whether an arbitration clause is enforceable is an issue of law, which we also review de novo. Atalese v. U.S. Legal Servs. Group, L.P., 219 N.J. 430, 445-46 (2014). We owe no deference to the trial court’s “interpretation of the law and the legal consequences that flow from established facts.” Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).

Defendants argue that the trial court erred when it determined that the first arbitration agreement signed by Weed four months before plaintiff’s injury was no longer binding on the parties at the time of plaintiff’s injury. We disagree.

While we are mindful that arbitration is a favored means of dispute resolution in New Jersey, the threshold issue before us is whether Weed’s signature on the July agreement would be binding on plaintiff for all subsequent visits. We apply well-established contract principles, and ascertain the parties’ intent from a consideration of all of the surrounding circumstances. James Talcott, Inc. v. H. Corenzwit & Co., 76 N.J. 305, 312 (1978). “An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose.” Tessmar v. Grosner, 23 N.J. 193, 201 (1957).

It is undisputed that neither agreement contains any reference to a term of validity. The parties submitted conflicting affidavits in support of their respective positions. Weed stated there was nothing in the agreement she signed to apprise a participant that the agreement was in effect for longer than the day of entry. Defendants contend that plaintiff did not need a second agreement signed for the November visit as the initial agreement remained in effect.

There is no evidence in the record before us to support defendants’ argument as the agreements are silent as to any period of validity. Defendants drafted these agreements and required a signature from all participants waiving certain claims and requiring submission to arbitration prior to permitting access to the facility. Any ambiguity in the contract must be construed against defendants. See Moscowitz v. Middlesex Borough Bldq. & Luan Ass’n, 14 N.J.Super. 515, 522 (App. Div. 1951) (holding that where a contract is ambiguous, it will be construed against the drafting party). We are satisfied that Judge Marczyk’s ruling declining enforcement of the July agreement was supported by the credible evidence in the record.

We further find that defendants’ argument regarding the November agreement lacks merit. The signor of that agreement was neither a parent, a legal guardian, nor the holder of a power of attorney needed to bind the minor plaintiff to the arbitration agreement. Defendants’ reliance on Hojnowski v. Vans Skate Park, 187 N.J. 323, 346 (2006) is misplaced. While the Court found that a parent had the authority to waive their own child’s rights under an arbitration agreement in Hojnowski, there is no suggestion that such authority would extend to a non-legal guardian. Not only would such a holding bind the minor to an arbitration agreement, it would also serve to bind the minor’s parents, waiving their rights to bring a claim on behalf of their child. We decline to so hold. See Moore v. Woman to Woman Obstetrics & Gynecology, LLC, 416 N.J.Super. 30, 45 (App. Div. 2010) (holding there is no legal theory that would permit one spouse to bind another to an agreement waiving the right to trial without securing consent to the agreement).

As we have concluded the threshold issue that neither the July nor the November agreement is enforceable as to the minor plaintiff, we do not reach the issue of whether the arbitration provision contained within the agreement accords with our legal standards and case law. Judge Marczyk’s denial of defendants’ motion to compel arbitration was supported by the evidence in the record.

Affirmed.

Notes:

[1] Lorianne Weed is A.M.’s mother. Because A.M. is a minor, we use initials in respect of his privacy and we refer to him hereafter as plaintiff.

[2] The agreement required the adult to “certify that [she was] the parent or legal guardian of the child(ren) listed [on the agreement] or that [she had] been granted power of attorney to sign [the] Agreement on behalf of the parent or legal guardian of the child(ren) listed.” There were no proofs presented that the adult met any of these requirements.

[3] JAMS is an organization that provides alternative dispute resolution services, including mediation and arbitration.

 


Connecticut court determines that a release will not bar a negligent claim created by statute.

Statute requires ski area to mark equipment on the slope. The ski area argued the release protected them from negligence claims based on the statute, and the court disagreed.

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

State: Connecticut, Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

Plaintiff: Alexandra Laliberte

Defendant: White Water Mountain Resorts

Plaintiff Claims: negligence

Defendant Defenses: Connecticut Skier Safety Act & release

Holding: for the plaintiff

Year: 2004

The plaintiff was skiing as part of a high school varsity ski team. She hit a snow making device which was inadequately identified and placed on the trail according to the plaintiff.

The defendant moved for summary judgment based on the Connecticut Skier Safety Act and a release the plaintiff had signed to participate on the ski team.

The release had been signed when the plaintiff was a minor, however, she did not rescind the release when she became an adult.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution.

Analysis: making sense of the law based on these facts.

The first argument was whether the Connecticut Skier Safety Act shielded the defendant from liability. The act requires the ski area operator to mark conspicuously the location of snow making equipment.

Sec. 29-211.  (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.

In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to: (1) Conspicuously marking all trail maintenance vehicles and furnishing the vehicles with flashing or rotating lights which shall be operated whenever the vehicles are working or moving within the skiing area; (2) conspicuously marking the entrance to each trail or slope with a symbol, adopted or approved by the National Ski Areas Association, which identifies the relative degree of difficulty of such trail or slope or warns that such trail or slope is closed; (3) ensuring that any lift tower that is located on a trail or slope is padded or otherwise protected; (4) maintaining one or more trail boards, at prominent locations within the ski area, displaying such area’s network of ski trails and slopes, designating each trail or slope in the same manner as provided in subdivision (2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act; (5) in the event maintenance personnel or equipment are being employed on any trail or slope during the hours at which such trail or slope is open to the public, conspicuously posting notice thereof at the entrance to such trail or slope; (6) conspicuously marking trail or slope intersections; (7) ensuring that passenger tramways, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, are equipped with restraint devices; (8) at the entrance of a passenger tramway, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, conspicuously posting instructions regarding the proper use of a restraint device on such passenger tramway and notice that the use of a restraint device on such passenger tramway is required by section 29-213, as amended by this act; and (9) ensuring that any hydrant, snow-making equipment and pipes that are located within the borders of a designated slope, trail or area that is approved and open for skiing by the operator and regularly groomed as part of the operator’s normal maintenance activities are padded or marked by portable fencing or a similar device.

Emphasize (bold) added

The plaintiff’s argued it was not marked. The ski area argued that the snow making device was not located on a ski trail or slope. Consequently, the court held that because there was a factual dispute, this matter had to go to trial.

The next issue was whether the release stopped claims created or based upon the statute. Normally, these claims are called negligence per se claims. (See Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability or Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case for more on Negligence Per Se claims.) Negligence per se claims are negligence claims based on a statute or rule created to protect people. Normally, releases do not work against negligence per se claims. That wording or pleading in describing the claim was not used in this case.

The parties agreed that the release itself was valid. The issue was what the release applied to.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.”

Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The court first looked at the Connecticut Skier Safety Act and found the act was silent on the effect of a release. The court then reviewed other Connecticut cases and decisions from other states where a release was raised as a defense to a negligence claim based upon a statute. Generally, the court found “… the statute created a public duty which the tenant had no power to extinguish. Private parties cannot “suspend the law by waiver or express consent.” Quoting from another case the court found ““parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.”

The court found two bases for invalidating releases when argued to bar claims like this.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member.

Here the court found using a release to avoid liability for a statutory duty would allow defendants to have free reign to ignore the statute.

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

The motion for summary judgment was denied and the case set for trial.

So Now What?

This result is probably the result you will find in all cases where the release is raised as a defense to a statutory duty. The only way to avoid this is to have the statute that creates the duty, include a clause that states the release is still valid.

Similar arguments are used by courts when they have determined that a statute that may have statutory duties and also has statutory protections eliminates the use of a release in full. Meaning the statute provided the protection the legislature wanted, that is all you get. Hawaii did this (Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release) and New Mexico in Berlangieri v. Running Elk Corporation, 132 N.M. 332; 2002 NMCA 60; 48, P.3d 70; 2002 N.M. App. 39; 41 N.M. St. B. Bull. 25.

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Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Alexandra Laliberte v. White Water Mountain Resorts

X07CV030083300S

Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

2004 Conn. Super. LEXIS 2194

August 2, 2004, Decided

August 2, 2004, Filed

Notice: [*1]  This decision is unreported and may be subject to further appellate review. Counsel is cautioned to make an independent determination of the status of this case.

Judges: Sferrazza, J.

Opinion By: Sferrazza

Opinion: Memorandum of Decision

The defendant, White Water Mountain Resorts, Inc., moves for summary judgment as to all counts in this action filed by the plaintiff Suzanne Bull, individually and as next friend of her daughter, Alexandra Laliberte. The plaintiffs’ complaint alleges that the defendant, a ski area operator, negligently failed to mark a snow-making device conspicuously so as to comply with General Statutes § 29-211.

The movant contends that judgment ought to enter in its favor because General Statutes § 29-212 exempts the defendant from liability and because the plaintiffs executed a valid waiver of liability. The plaintiffs argue that a genuine factual dispute exists which puts into doubt the applicability of § 29-212 and that the plaintiffs had no power to waive liability for any statutory obligation imposed by § 29-211.

Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that [*2] no genuine dispute as to material fact exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.

It is undisputed that on January 13, 2003, Alexandra Laliberte sustained serious injury to her left leg while engaged in ski practice, as a member of the Glastonbury High School varsity ski team, while at the defendant’s ski area. The plaintiffs’ complaint avers that this injury was caused when Laliberte struck a snow-making machine which was inadequately identified and which was positioned upon a portion of a ski trail or slope.

On November 14, 2002, the plaintiffs knowingly and voluntarily signed an anticipatory release of liability absolving the defendant from any claims by the plaintiffs resulting from participation in the ski team practices or events at the defendant’s ski facility, even if such “injury is caused by the negligence” of the defendant. It is uncontroverted that, if this waiver is enforceable, it would exonerate the defendant from the liability on the plaintiffs’ claims.

I

The court first addresses the movant’s contention that § 29-212 exempts the defendant from liability. Section 29-212 must be examined in conjunction with [*3] § 29-211 because these related provisions “form a consistent, rational whole.” Jagger v. Mohawk Mountain Ski Area, 269 Conn. 672, 681, 849 A.2d 813 (2004). These statutes were enacted to delineate the respective responsibilities of the skier and the ski area operator. Id., 682. Section 29-212 enumerates a nonexhaustive list of risks inherent in the sport of skiing for which ski area operators bear no responsibility if injury ensues. Id. Section 29-211, on the other hand, imposes specified duties upon ski area operators. Id., 681.

Subsection 29-211(2) obligates the operator to mark conspicuously the location of snow- making devices that are placed on a trail or slope. A review of the pleadings and documents submitted discloses that a genuine factual dispute exists as to whether the particular device which Laliberte struck was sited on a ski trail or slope. Consequently, summary judgment is unavailable on this ground.

II

The enforceability of the preinjury release poses a more difficult question.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is [*4] against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.” Fischer v. Rivest, Superior Court, New Britain J.D. Complex Litigation, dn. X05-CV00-509627, 33 Conn. L. Rptr. 119 (August 15, 2002), Aurigemma, J.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution. Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The statutes regarding skiing and ski area operations, General Statutes §§ 29-211 though 29-214 are silent as to whether waiver of the duties imposed on ski area operators are permitted or forbidden.

In Hyson v. White Water Mountain Resorts, 265 Conn. 636, 829 A.2d 827 (2003), our Supreme Court held that a preinjury waiver [*5] which omitted express reference to negligence was insufficient to absolve the ski area operator, the same defendant as in the present case, from liability for negligence. Id., 643.

The majority explicitly stated that its decision ventured no opinion regarding the viability of an anticipatory release should it include the missing language.

Id., 640 and 643, fn. 11. Despite this disclaimer, the Hyson case, supra, does provide some guidance bearing on the issue before this court because the majority reiterated the proposition that a preinjury release from liability for negligent acts “is scrutinized with particular care.” Id., 642.

The two dissenting justices in Hyson, supra, indicated that such preinjury releases are valid despite the absence of the use of a form of the word negligence expressly. Id., 649. Implicit in the dissenters’ position is that such waiver is possible as to violations of the duties imposed by § 29-211.

While a plausible argument can be made that this implication supports the movant ‘s contention, this Court is reluctant to harvest precedential value on this issue from that dissent [*6] because the precise claim of unenforceability raised in the present case was never raised in Hyson, supra.

In L’Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), the Supreme Court ruled that where a statute compels a landlord to illuminate a common stairwell, a tenant cannot waive that burden and could, indeed, sue the landlord for injury caused by that statutory violation. Id., 355-56. The Supreme Court determined that the statute created a public duty which the tenant had no power to extinguish. Id. Private parties cannot “suspend the law by waiver or express consent.” Id., 357. Of course, L’Heureux, supra, involved a tenancy and not recreational activity.

A similar case is Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246 (1969). There, another tenant was permitted to sue a landlord based on housing code violations despite a written lease containing a waiver clause. Id., 104. Again, Panaroni v. Johnson, supra, did not involve a recreational activity waiver.

A Connecticut case closer to the facts of the present one is Fedor v. Mauwehu Council, 21 Conn.Sup. 38, 143 A.2d 466 (1958). [*7] The trial court granted a demurrer to a special defense based on a written waiver signed by the injured boy’s father, which waiver purported to release a boy scout camp from liability.

The court stated that “parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.” Id., 39.

On the national level, some jurisdictions invalidate recreational activity releases if the negligent conduct contravenes public policy as embodied in statutorily imposed duties while other jurisdictions recognize the enforceability of such preinjury waivers. See 54 A.L.R.5th 513 (2004), §§ 5[a] and [b].

In McCarthy v. National Association for Stock Car Auto Racing, 48 N.J. 539, 226 A.2d 713 (1967), the New Jersey Supreme Court affirmed a trial court’s invalidation of a preinjury release in a case where the plaintiff was allegedly harmed by the defendants’ failure to comply with a state regulation governing the placement of fuel lines in racing cars. That Court stated that the “prescribed safety requirements may not be contracted away, for if they could be, [*8] the salient protective purposes of the legislation would largely be nullified.” Id. 54. That opinion recognized that such anticipatory releases are enforceable when they relate to strictly private affairs, however the Court remarked that the “situation becomes an entirely different one in the eye of the law when the legislation in question is . . . a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.” Id.

The West Virginia Supreme Court reached a similar result in Murphy v. American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991). West Virginia has a statutory scheme regarding the division of responsibility for harm resulting from the risks of whitewater rafting. That scheme immunizes commercial rafting operators from liability for risks inherent in that activity but “imposes in general terms certain statutory duties upon commercial whitewater outfitters.” Id., 317. A rafter suffered injuries when the outfitter ‘s employee attempted to use one raft to dislodge another which was hung up on some rocks. Id., 313-14. [*9] That Court concluded “when a statute imposes a standard of care, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable.” Id., 318. The West Virginia Supreme Court also observed that that state’s skiing statutes were very similar to their whitewater rafting legislation. Id., 317.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member. The court finds this reasoning persuasive.

Common-law negligence is a breach of a duty to exercise reasonable care with respect to another when confronting a particularized and individualized set of surrounding circumstances which may never arise again. A party is entitled to contract away the right to hold the releasee responsible for careless conduct peculiar to the releasor’s situation.

On the other hand, statutory negligence [*10] is based on deviation from a legislatively mandated course of conduct which governs a generalized set of circumstances. The statutory rule applies in every case in which those generic circumstances may exist and where the injured party falls within the class the statute was designed to protect. Coughlin v. Peters, 153 Conn. 99, 101, 214 A.2d 127 (1965). The doctrine of statutory negligence applies to create liability regardless of whether the defendant acted with reasonable prudence. Jacobs v. Swift & Co., 141 Conn. 276, 279, 105 A.2d 658 (1954).

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

Given our Supreme Court’s reluctance to afford liberal recognition to preinjury waivers and the need to prevent the undermining of statutorily defined duties, the court holds [*11] as a matter of law, that the plaintiffs’ release in this case is unenforceable to defeat the claims of a violation of § 29-211.

The motion for summary judgment is, therefore, denied.

Sferrazza, J.


Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.

Minor injured in a sky-diving accident is allowed to sue because the release, she and her parents signed are void under Oklahoma law. Parents are not allowed to sue for their claims because of the release.

Wethington v. Swainson, 2015 U.S. Dist. LEXIS 169145

State: Oklahoma, United States District Court for the Western District of Oklahoma

Plaintiff: Holly Wethington and Makenzie Wethington

Defendant: Robert Swainson, d/b/a/ Pegasus Airsport

Plaintiff Claims: (1) provided inadequate training to [*2]  Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level

Defendant Defenses: Release

Holding: for the defendant for the claims of the parents, for the plaintiff for her claims

Year: 2015

The minor plaintiff was sixteen years old when she wanted to check another item off her bucket list. She went to the defendant’s sky-diving business along with her parents.

First, the minor plaintiff completed a Registration Form and Medical Statement which included a notice that sky diving was dangerous. The minor plaintiff also signed a release. Her parents also signed the release. The release required the minor plaintiff to write out a statement that she knew she was signing a release and understood the risks. She wrote this out and signed it. The bottom of the release also had a ratification paragraph which the Parent/Guardian was required to sign that stated they understood the risks and released the defendants. Both parents signed this.

In total, a warning in one document, a release signed by all three parents, an additional clause signed by the paragraphs and a written paragraph written and signed by the minor plaintiff is normally far in excess of what a party signs before engaging in recreational activities.

The minor plaintiff then received four houses of training. On her first jump, her parachute malfunctioned, and she hit the ground sustaining injuries.

The defendants filed for a motion for summary judgment based on the release.

Analysis: making sense of the law based on these facts.

The court started by looking at the issues surrounding release law in Oklahoma. “An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Releases are enforceable in Oklahoma but are “distasteful.”

At the same time, releases in Oklahoma should not be voided because of public policy grounds. “Notwithstanding this admonition, courts should void contract clauses on public-policy grounds “rarely, with great caution and in cases that are free from doubt.” Public policy grounds are the normal way releases signed by minors are voided.

Releases in Oklahoma have to meet three criteria to be valid.

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and

(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

The court also stated that under Oklahoma law releases cannot work to prevent “liability for intentional, willful or fraudulent acts or gross, wanton negligence.”

After reviewing the release the court found the release was valid.

First, the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction. Plaintiffs signed and initialed several clauses containing the headings, RELEASE FROM LIABILITY, COVENANT NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her husband signed a ratification stating they had read the Release, understood its terms, and agreed to be bound thereby.

The court then looked at whether there was inequality in the bargaining power of the plaintiff and found none.

Second, there is no evidence of unequal bargaining power. “Oklahoma courts consider two factors in determining parties’ relative bargaining power: ‘(1) the importance of the subject matter to the physical or economic wellbeing of the party agreeing to the release, and (2) the amount of free choice that party could have exercised when seeking alternate services.'” There is no evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my bucket list.”

The court found the plaintiffs were not bound to sky dive with the defendant; she was free to sky dive with anyone. Therefore, the plaintiff was not under any pressure or requirement to sky dive with the defendant.

The court then looked at Oklahoma law to see if parents could sign away a minor’s right to sue.

It is also true that as a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring the contract of a minor is voidable at the election of the minor after she attains majority. Under Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.

The court also found that for a claim to be approved for a minor for an injury resulting in a settlement, the court had to approve the settlement.

However, the court found this case was complicated by the fact the minor plaintiff’s parents had also signed the release. “In this case, however, Makenzie’s parents also knowingly signed the Release on her behalf, ratifying and affirming its exculpatory content, and agreeing to be bound thereby.”

The Oklahoma Supreme Court did not rule on the issue. Federal courts hearing cases based on the diversity of the parties dealing with state law issues must apply the law of the state where the lawsuit is based or the law that applies.

…federal court sitting in diversity must apply state law as propounded by the forum’s highest court. Absent controlling precedent, the federal court must attempt to predict how the state’s highest court would resolve the issue.

The next issue is disaffirmance of the contract. A minor must disaffirm a contract after reaching the age of majority or the contract is valid. The plaintiffs argued, and the court agreed that the filing of the lawsuit disaffirmed the release. “Plaintiffs correctly argue that commencement of this lawsuit constitutes a disaffirmance of the Release, and the contract is void ab initio.”

For more on this see Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18. However, this decision was later overturned in Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

The court also examined the issue that the parents signed the release and found it had no bearing on the case. However, the release did stop claims by the parents.

The ratification signed by Makenzie’s parents is, likewise, unenforceable as a bar to Makenzie’s claims. The Release, however, is otherwise conspicuous and clear so as to bar the parents’ cause of action based upon injury to their child.

When a minor is injured, the minor can sue and the parents can sue. Dependent upon the state, the claims of the parents may include those of the minor or may be solely based on the parents’ loss.

The court then ruled that the minor claim was valid and not barred by the release. The parent’s claims, specifically the named plaintiff, the minor plaintiff’s mother, were barred by the release.

Defendant’s motion is granted as to Plaintiff Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim for negligence. Since the skydiving contract is rendered void ab initio by means of Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.

So Now What?

The minor plaintiff can sue, and the mother cannot.

This decision is not controlling in Oklahoma. The Oklahoma Supreme Court could still rule that a parent can sign away a minor’s right to sue.

At the same time, this decision outlines release law in Oklahoma and does a great job. As far as how the Oklahoma Supreme Court will rule, the Federal District Court knows the Supreme Court in the state where they sit better than any other person, and I would vote with the Federal Court.

As in other cases in the majority of states, a parent cannot sign away a minor’s right to sue.  To see the States where a parent can sign away a minor’s right to sue and the decisions deciding that issue see States that allow a parent to sign away a minor’s right to sue.

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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

Still 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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