Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause.

The release was written poorly choosing California as the forum state for the lawsuit and applying California law. The accident occurred in Tennessee, and the defendant was based in Nevada so the court quickly through the venue and jurisdiction clauses out.

Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6

State: Tennessee, Court of Appeals of Tennessee, at Nashville

Plaintiff: Crystal Blackwell, as Next Friend to Jacob Blackwell, a Minor

Defendant: Sky High Sports Nashville Operations, LLC

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff

Year: 2017

Another trampoline case, another stretch outside the normal subject matter of these articles, however, the case is instructive on two points. (1.) The court just slammed the defendant’s release based on a jurisdiction and venue clause that had nothing to do with the place where the accident occurred and (2.) The judge stated a jurisdiction and venue clause in a release; if it met Tennessee’s law would be valid when signed by a parent to stop the claims of a child.

The minor plaintiff was injured while jumping on a trampoline at the defendant’s facility in Nashville, Tennessee. Prior to his injury, his mother signed a release. The minor plaintiff visited the defendant’s facilities on numerous occasions prior to his injury. He was injured playing a game of trampoline dodgeball.

The release included a forum selection (venue) clause, which stipulated California was the site of any lawsuit applying California law. (California allows a mother to sign away a parent’s right to sue. See States that allow a parent to sign away a minor’s right to sue).

The mother and the son sued the defendant. The defendant filed a motion to change parties, meaning the defendant named in the lawsuit was not the defendant who owned the facility where the accident occurred. The parties eventually stipulated to that, and the correct parties were identified and in the lawsuit. The defendant filed a motion to enforce the contract between the parties, meaning the lawsuit should be moved to California as stated in the release. The motion also stated the claims made by the mother should be dismissed because she signed the release.

The mother voluntarily dismissed her claims against the defendant. By doing so, the defendant was now arguing release law only against the minor plaintiff in a state with a long history of denying those releases. (See States that allow a parent to sign away a minor’s right to sue).

The trial court had a hearing on the issue of the venue and jurisdiction clauses and ruled them unenforceable.

Therein, the trial court ruled that neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has “a more significant relationship to the facts surrounding this case.”

The court also ruled that the release was not valid to protect against the claims of the minor, now the sole plaintiff in the case finding “The trial court also noted that Tennessee’s law included a fundamental public policy regarding the protection of children.”

The trial court eventually granted the defendant’s motion for an interlocutory appeal. An interlocutory appeal is an appeal prior to the granting of a final decision by the court. This type of appeal is rare and only done when one party can argue the issue should be decided by the appellate court prior to going to trial and has a good basis for their argument.

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

The Appellate Court found four issues to review:

1. Whether the trial court erred in refusing to enforce the forum selection clause contained in the release?

2. Whether the trial court erred in refusing to enforce the choice of law provision contained in the release?

3. Whether the trial court erred in refusing to enforce the waiver of liability against Son contained in the release signed by Mother?

4. Whether the trial court erred in refusing to allow the amendment to the complaint to allow Son to recover for pre-majority medical expenses.

Starting with issue one the court looked at the exact same issues discussed in Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case. The court started with the general law concerning venue or forum selection clauses.

Generally, a forum selection clause is enforceable and binding on the parties entering into the contract. A forum selection clause will be upheld if it is fair and reasonable in light of all the circumstances surrounding its origin and application.

Forum selection clauses will be enforced unless:

(1) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (2) or the other state would be a substantially less convenient place for the trial of the action than this state; (3) or the agreement as to the place of the action was obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means; (4) or it would for some other reason be unfair or unreasonable to enforce the agreement.

The forum selection clause is valid unless the party arguing against the clause proves it would be unfair and inequitable. “Tennessee law is clear, however, that the party challenging the enforcement of the forum selection clause “should bear a heavy burden of proof.”

The plaintiffs were from Tennessee, and the accident occurred in Tennessee. All the plaintiff’s witnesses were from Tennessee because that is where the injured minor received his medical treatment. The defendant was a Nevada corporation doing business in Nevada. However, the defendant’s release stated that California was the place for any litigation. The reason for that is California allows 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).

California was obviously a “less convenient place” to have a trial because the majority, if not all the witnesses, were based in Tennessee. However, inconvenience or annoyance is not enough to invalidate a venue clause, nor will increased cost of litigating the case.

Still, the Tennessee Supreme Court has previously held that where neither company at issue was a resident of the proposed forum and none of the witnesses were residents of the proposed forum, the party resisting a forum selection clause had met its burden to show that the proposed forum was a substantially less convenient forum.

What triggered the court in its decision is the total lack of any real relationship of the parties to the case or the facts of the case to California. Add to that California first issue, the law would allow the release to be effective. Under Tennessee’s law, California would not provide a fair forum for the plaintiff. The release was signed in Tennessee, which the court stated was the default location for the litigation. “Tennessee follows the rule of lex loci contractus. This rule provides that a contract is presumed to be governed by the law of the jurisdiction in which it was executed absent a contrary intent.”

The choice of law or jurisdiction question sunk for the same reason.

Instead, the choice of law provision fails for largely the same reason that the forum selection clause fails: no material connection exists between the transaction at issue and California. As previously discussed, the contract at issue was signed in Tennessee, between Tennessee residents and a Nevada company, concerning activities taking place in Tennessee. Black’s Law Dictionary defines “material” as “[h]aving some logical connection with the consequential facts.” The simple fact that Sky High’s parent company was founded in California over a decade ago and now operates several facilities there is simply not sufficient to show a logical connection to the transaction at issue in this case.

The choice of law provision in Tennessee and most if not all states, will be honored when there is a “material connection” to the transactions at issue. That means that a jurisdiction and venue clause must be based where the plaintiff is, where the defendant is or where the accident happened. IF the jurisdiction and venue clause is based on the defendant’s location, the courts are looking for more than just location. They want witnesses needed to be there or a real reason why the defendant’s location to be the site of the trial and the law to be applied.

After throwing out the jurisdiction and venue clauses in the release for being an attempt to get around an issue, the court then looked at the release itself. The court first looked at limitations on releases in Tennessee.

These types of agreements, however, are subject to some important exceptions, such as waivers involving gross negligence or willful conduct or those involving a public duty. These types of provisions must also be clear and unambiguous.

The plaintiff’s argument was the release violated Tennessee’s public policy.

[T]he public policy of Tennessee is to be found in its constitution, statutes, judicial decisions and applicable rules of common law.'” “Primarily, it is for the legislature to determine the public policy of the state, and if there is a statute that addresses the subject in question, the policy reflected therein must prevail.”

To determine if a contract violates public policy the court must look at the purpose of the contract, if the contract will have a detrimental effect on the public. “‘The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.’”

The court then reviewed the Childress decision in detail and found it to still be viable law in Tennessee.

Based on the foregoing, we conclude that there is no basis to depart from this Court’s well-reasoned decision in Childress. Because the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements, the trial court did not err in refusing to enforce the waiver of liability and indemnity provisions of the release signed by Mother on behalf of Son.

This court agreed, releases signed by parents to stop claims of a minor are invalid in Tennessee. Tennessee now has two appellate court decisions prohibiting a parent from signing away a minor’s right to sue. The Tennessee Supreme Court declined to review the decision, Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 Tenn. LEXIS 305.

The court then looked at a motion filed by the plaintiff to increase the damages based on pre-majority medical expenses. These were medical bills paid by the mother prior to the injured plaintiff reaching the age of 18. Those bills under Tennessee’s law where the mother’s bills, the person who paid them, however, since she had dismissed her claims, those damages were no longer part of the suit. Now the plaintiff was trying to include them in the injured plaintiff’s claims.

The court denied that motion based on the release the mother signed, which prevented her claims and the plaintiff as a minor had no legal duty to pay those bills, only the mother could. Therefore, those damages could not be included in the lawsuit.

The release in that regard proved valuable to the defendant because the medical bills incurred right after the accident were the largest amount of claims to be paid.

So Now What?

This is a great example of a case where the local business accepted the release from above, home office, without checking to see if that release was valid. This occurs every day, with the same results, when an insured asks for a release from their insurance company or a new franchise opens up and accepts the paperwork from the franchisor as is.

Always have your release reviewed to see if it meets the needs of your business and the laws of your state.

The release was effective to stop the lawsuit for claims made by the mother of the injured minor. Those medical bills paid by the mother were probably substantial and would the largest amount of claims owed. In many cases with the reduced amount of medical bills, other damages would be significantly reduced because those damages tend to be a factor of the medical bills.

What is of note in this decision is the jurisdiction and venue clause, or choice of law and forum selection clause as defined in the decision would have been upheld if it was not so absurd. If the choice of law clause was based on the requirements that it have some relationship to the parties or the accident, it seems to have been a valid decision and upheld.

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

What do you think? Leave a comment.

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Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6

Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6

Crystal Blackwell, as Next Friend to Jacob Blackwell, a Minor v. Sky High Sports Nashville Operations, LLC.

No. M2016-00447-COA-R9-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

2017 Tenn. App. LEXIS 6

November 16, 2016, Session

January 9, 2017, Filed

SUBSEQUENT HISTORY: Appeal denied by Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 Tenn. LEXIS 305 (Tenn., May 18, 2017)

PRIOR HISTORY: Tenn. R. App. P. 9 [*1]  Interlocutory Appeal; Judgment of the Circuit Court Affirmed in Part; Reversed in Part; and Remanded. Appeal from the Circuit Court for Davidson County. No. 14C524 Thomas W. Brothers, Judge.

COUNSEL: David J. Weissman, Nashville, Tennessee, for the appellant, Crystal Blackwell, as next friend of Jacob Blackwell, a minor.

Ben M. Rose and Joshua D. Arters, Brentwood, Tennessee, for the appellee, Sky High Sports Nashville Operations, LLC.

JUDGES: J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and BRANDON O. GIBSON, J., joined.

OPINION BY: J. STEVEN STAFFORD

OPINION

In this interlocutory appeal, the defendant trampoline park argues that the trial court erred by refusing to enforce a forum selection clause, a choice of law provision, and a waiver of liability and indemnity clause against the minor plaintiff. Additionally, the minor plaintiff argues that the trial court erred in denying his motion to alter or amend his complaint to allow him to claim pre-majority medical expenses. We reverse the trial court’s denial of the minor plaintiff’s motion to amend only to the extent that the minor plaintiff [*2]  may be permitted to assert pre-majority medical expenses that were paid by him or that he is legally obligated to pay. We affirm the trial court in all other respects. Affirmed in part, reversed in part, and remanded.

OPINION

Background

On July 3, 2012, Plaintiff/Appellant Crystal Blackwell (“Mother”) signed a contract entitled “Customer Release of Liability and Assumption of Risk” (“the release”) with Defendant/Appellee Sky High Sports Nashville Operations, LLC (“Sky High”) in order for her son, Jacob Blackwell (“Son,” and, as represented by Mother as next friend in this lawsuit, “Appellants”) to participate in activities at an indoor trampoline park operated by Sky High. The release included a forum selection clause designating California as the proper forum for litigation, a choice of law provision stipulating California as the applicable law governing the contract, and a liability waiver on behalf of both Mother and Son, as discussed in detail infra. The release further provided that it would remain in effect for any future visits to Sky High until Son turned eighteen. Mother and Son returned to Sky High to participate in trampolining activities on multiple occasions after Mother [*3]  signed the contract. On March 26, 2013, Son was allegedly injured at Sky High while participating in a trampoline dodgeball tournament.

On February 5, 2014, Appellants filed a complaint in the Davidson County Circuit Court against “Sky High Sports Nashville, LLC.” The complaint alleged that Son moved in an awkward fashion on a trampoline to dodge the ball and landed “awkwardly,” that another player’s “double bounce” contributed to his awkward landing, and that Son suffered from a torn patellar tendon and broken tibia as a result, necessitating surgery. According to Appellants, Sky High “knew or should have known that playing dodgeball on a trampoline was a very dangerous activity” and therefore was guilty of negligence. The complaint further alleged that any warnings, disclaimers, or waivers of liability signed by Mother were “void, invalid, and/or inadequate.” The complaint sought damages, including past medical expenses, future medical expenses, pain and suffering, emotional injury and suffering, loss of enjoyment of life, lost wages, and loss of consortium in the amount of $500,000.00.

On May 5, 2014, Sky High Sports Nashville, LLC filed an answer denying the material allegations [*4]  contained in the complaint. In addition, Sky High Sports Nashville, LLC raised several affirmative defenses: (1) that Sky High Sports Nashville, LLC was not the proper party; (2) that pursuant to the parties’ contract, California was the proper forum and California law was applicable to the dispute; and (3) that Appellants’ claims were barred by the release signed by Mother individually and on Son’s behalf. On November 3, 2014, Sky High was substituted as the proper defendant by agreement of the parties and an amended complaint was filed reflecting the change.

On March 17, 2015, Sky High filed its motion to enforce the contract between the parties. The motion first argued that any claims on behalf of Mother should be dismissed because the release contained a forum selection clause, a choice of law provision, and a waiver of liability, all of which were enforceable against Mother. Sky High also argued that the forum selection clause, choice of law provision, and liability waiver should be enforced against Son as well, despite “dated Tennessee authority to the contrary” which did “not reflect the current state of the law.” In sum, Sky High offered the following various alternative methods [*5]  for resolving this dispute: (1) that the trial court should dismiss the case based on the forum selection clause; (2) that the trial court retain jurisdiction but apply California law; or (3) that the trial court should enforce the release’s liability waiver and dismiss the case as to both Mother and Son.

Appellants filed a response to the motion to enforce on May 4, 2015. Therein, Appellants argued that the forum selection clause and choice of law provision were invalid because the dispute involved in this case has no connection to California. Appellants also asserted that based upon this Court’s decision in Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989), a parent may not effectively waive liability on behalf of a minor. The response offered no argument, however, that the release of liability did not apply to any claims on behalf of Mother. Accordingly, on the same day, Mother filed a notice of voluntary dismissal of her claims against Sky High.

In response to Appellants’ contention that the dispute in this case had no connection with California, Sky High filed the affidavit of Rolland Weddell on May 6, 2015. In his affidavit, Mr. Weddell asserted that he helped found Sky High Sports, “a larger national brand” of which Sky High [*6]  was a part. According to Mr. Weddell, the company’s first two stores were founded in California in 2006. Mr. Weddell explained that ten trampoline parks under the Sky High Sports brand currently operate in California. Mr. Weddell, however, resides in Nevada, where he serves as the loss prevention manager for Sky High. There is no dispute that Sky High’s corporate headquarters is also in Nevada.

The trial court held a hearing on Sky High’s motion to enforce on May 8, 2014. On May 22, 2015, the trial court entered an order denying Sky High’s motion to enforce in its entirety. Therein, the trial court ruled that neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has “a more significant relationship to the facts surrounding this case.” The trial court also noted that Tennessee law included a fundamental public policy regarding the protection of children. Consequently, the trial court denied Sky High’s request to enforce the waiver of liability as to the Son’s claims, noting that such a contract is not permissible in Tennessee [*7]  under the holding in Childress.

On June 22, 2015, Sky High filed a motion to alter or amend the trial court’s judgment, or in the alternative, for an interlocutory appeal of the trial court’s denial of the motion to enforce pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. While this motion was pending, on July 31, 2015, Appellants filed a motion to amend their complaint. Therein, Appellants contended that because the individual claims of Mother had been voluntarily dismissed, an amendment was necessary to ensure the proper parties were named in the complaint and to request medical expenses, both past and future, on behalf of Son, with Mother acting as next friend. Sky High opposed the amendment, arguing that only a parent could bring a claim for past medical expenses for a minor child. Sky High contended that, because Mother’s claims were barred by the release, neither Mother nor Son was entitled to recover these damages.

On February 23, 2016, the trial court entered an order on the pending motions to amend the complaint and to alter or amend, or in the alternative, for an interlocutory appeal. First, the trial court denied Sky High’s motion to alter or amend but granted their request for an interlocutory appeal of the [*8]  denial of the motion to enforce. Additionally, the trial court granted Appellants’ motion to alter or amend, except to the extent that the amendment would allow “recovery of any pre-majority medical expenses.” The trial court, however, also allowed an interlocutory appeal of this ruling. Eventually, this Court also granted the requested interlocutory appeal as to both issues. Accordingly, this appeal followed.

Issues Presented

As we perceive it, this appeal involves four issues:

1. Whether the trial court erred in refusing to enforce the forum selection clause contained in the release?

2. Whether the trial court erred in refusing to enforce the choice of law provision contained in the release?

3. Whether the trial court erred in refusing to enforce the waiver of liability against Son contained in the release signed by Mother?

4. Whether the trial court erred in refusing to allow the amendment to the complaint to allow Son to recover for pre-majority medical expenses.

Standard of Review

In this case, the trial court denied Sky High’s motion to dismiss based upon a forum selection clause, a choice of law provision, and a liability waiver contained in the release.  [HN1] In considering an appeal from [*9]  a trial court’s ruling on a motion to dismiss, we take all allegations of fact in the complaint as true and review the trial court’s legal conclusions de novo with no presumption of correctness. Mid-South Industries, Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, 27 (Tenn. Ct. App. 2010) (citing Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996)); see also Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 553 (Tenn. 2013) (citing Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010)) (“The trial court’s denial of [d]efendants’ motions to dismiss involves a question of law, and, therefore, our review is de novo with no presumption of correctness.”).

In addition, the trial court denied Appellants’ motion to amend their complaint.  [HN2] A trial court’s decision to deny a motion to amend a complaint is reviewed under an abuse of discretion standard. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979).

Discussion

I.

We begin first by considering whether the trial court erred in refusing to dismiss Appellants’ complaint on the basis of the forum selection clause contained in the release, or in the alternative, in refusing to apply California law to this dispute. The release signed by Mother on behalf of Son contains the following language: “In the event that I file a lawsuit against Sky High [], I agree to do so solely in the state of California and I further agree that the substantive law of California shall apply in that action without regard to the conflict [*10]  of law rules of that state.”

The trial court did not rule that the forum selection and choice of law provisions were unenforceable because the release containing them was signed by Mother on behalf of Son, as is true of the liability waiver discussed in detail infra; instead, the trial court ruled that the forum selection and choice of law provisions were unenforceable based upon the Tennessee framework regarding provisions of this type. Likewise, in their reply brief to this Court, Appellants do not assert that the forum selection and choice of law provisions are unenforceable against Son simply due to the fact that the provisions were included in a contract signed by Mother on behalf of Son. Rather, Appellants assert that the trial court correctly determined that California has so little interest in this case and litigating in California would be substantially less convenient than in Tennessee so as to militate against enforcement of both the forum selection and choice of law provisions. Accordingly, we assume arguendo for purposes of this appeal that both the forum selection clause and choice of law provision are binding against Son unless otherwise rendered unenforceable by Tennessee [*11]  law. We therefore first proceed to address whether Tennessee law renders the forum selection clause unenforceable in this case.

A.

[HN3] Generally, a forum selection clause is enforceable and binding on the parties entering into the contract. Lamb v. MegaFlight, Inc., 26 S.W.3d 627, 631 (Tenn. Ct. App. 2000). A forum selection clause will be upheld if it is fair and reasonable in light of all the circumstances surrounding its origin and application. Id. (citing Dyersburg Mach. Works, Inc. v. Rentenbach Eng’g Co., 650 S.W.2d 378 (Tenn. 1983)). According to the Tennessee Supreme Court, a court must give effect to a forum selection clause and refuse to entertain the action unless:

(1) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (2) or the other state would be a substantially less convenient place for the trial of the action than this state; (3) or the agreement as to the place of the action was obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means; (4) or it would for some other reason be unfair or unreasonable to enforce the agreement.

Dyersburg, 650 S.W.2d at 380 (quoting The Model Choice Forum Act of 1968). The Dyersburg Court further stated that Tennessee courts should give consideration to the above factors and should enforce a forum selection clause [*12]  unless the party challenging the clause demonstrates that enforcement would be unfair or inequitable. Id. Our research demonstrates that the factors promulgated by the Dyersburg Court have been followed in numerous subsequent cases. E.g., Cohn Law Firm v. YP Se. Advert. & Publ’g, LLC, No. W2014-01871-COA-R3-CV, 2015 Tenn. App. LEXIS 497, 2015 WL 3883242, at *11 (Tenn. Ct. App. June 24, 2015); Sevier Cnty. Bank v. Paymentech Merch. Servs., No. E2005-02420-COA-R3-CV, 2006 Tenn. App. LEXIS 553, 2006 WL 2423547 (Tenn. Ct. App. Aug. 23 2006); Spell v. Labelle, No. W2003-00821-COA-R3-CV, 2004 Tenn. App. LEXIS 255, 2004 WL 892534 (Tenn. Ct. App. Apr. 22, 2004); Signal Capital, No. E2000-00140-COA-R3-CV, 2000 Tenn. App. LEXIS 603, 2000 WL 1281322 (Tenn. Ct. App. Sept. 7, 2000); Tennsonita (Memphis), Inc. v. Cucos, Inc., No. 6, 1991 Tenn. App. LEXIS 297, 1991 WL 66993 (Tenn. Ct. App. May 2, 1991). Tennessee law is clear, however, that the party challenging the enforcement of the forum selection clause “should bear a heavy burden of proof.” Chaffin v. Norwegian Cruise Line Ltd., No. 02A01-9803-CH-00080, 1999 Tenn. App. LEXIS 231, 1999 WL 188295, *4 (Tenn. Ct. App. Apr. 7, 1999).

We first note that there are no allegations in this case that the forum selection clause at issue was “obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means[.]” Dyersburg, 650 S.W.2d at 380. We agree with both Appellants and the trial court, however, that, with respect to the second Dyersburg factor, California is a substantially less convenient place to hold this lawsuit. We recognize that  [HN4] a “party resisting a forum selection clause must show more than inconvenience or annoyance[.]” [*13]  ESI Cos., Inc. v. Ray Bell Constr. Co., No. W2007-00220-COA-R3-CV, 2008 Tenn. App. LEXIS 115, 2008 WL 544563, at *7 (Tenn. Ct. App. Feb. 29, 2008). Accordingly, mere increased litigation expenses will be insufficient to invalidate a forum selection clause. Still, the Tennessee Supreme Court has previously held that where neither company at issue was a resident of the proposed forum and none of the witnesses were residents of the proposed forum, the party resisting a forum selection clause had met its burden to show that the proposed forum was a substantially less convenient forum. See Dyersburg, 650 S.W.2d at 381 (holding that the second factor was met because the chosen forum of Kentucky was “a substantially less convenient place for trial . . . wherein all witnesses are Tennessee residents, the plaintiffs and the defendants, . . . are Tennessee corporations”).

The same is true in this case. Here, Mother and Son are Tennessee residents. Moreover, the alleged injury to Son and his later treatment all occurred in Tennessee. It thus appears that Appellants’ witnesses to both the alleged negligence and later treatment may all be found in Tennessee. On the other hand, Sky High has not presented this Court with any prospective witnesses regarding the events at issue in this case that are California residents. [*14]  While it is true that Sky High is not a Tennessee corporation, as were the corporations in Dyersburg, nothing in the record suggests that Sky High is incorporated or has its principal place of business in California, the forum designated in the release. Rather, the only information in the record indicates that Sky High has its headquarters in Nevada. Instead, from the affidavit of Mr. Weddell, we discern that Sky High’s limited contact with California involves only that the “larger brand” under which Sky High operates was founded in California over a decade ago and now operates several facilities in California. Respectfully, a decades-old contact by a parent company with a state and the operation of several trampoline parks in a state is insufficient to undermine Appellants’ contentions regarding the inconvenience that would be posed by litigating in California. Accordingly, we hold that Appellants have met their burden to show that California presents a substantially less convenient forum than Tennessee.

We also agree that, with respect to the first and fourth Dyersburg factors, California is unlikely to provide Son with effective relief and that forcing Son to litigate in California [*15]  would otherwise be unfair. As discussed in detail infra,  [HN5] Tennessee law and California law differ as to whether waivers of liability signed by parents may be enforced as to their children. Compare Childress v. Madison Cnty., 777 S.W.2d 1 (Tenn. Ct. App. 1989) (refusing to enforce such a waiver), with Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Ct. App. 1990) (enforcing such a waiver). Because we reaffirm Tennessee law that parents cannot effectively sign pre-injury waivers on behalf of their children, as discussed in detail infra, allowing Son to litigate his case in Tennessee provides him with a better opportunity for full relief.

B.

We next consider whether the trial court erred in refusing to enforce the release’s choice of law provision indicating that California law should apply to this case.  [HN6] Generally, absent a choice of law provision in a contract, “Tennessee follows the rule of lex loci contractus. This rule provides that a contract is presumed to be governed by the law of the jurisdiction in which it was executed absent a contrary intent.” Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474-75 (Tenn. Ct. App. 2003) (quoting Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650 (Tenn. Ct. App. 1999)). As this Court explained:

If the parties manifest an intent to instead apply the laws of another jurisdiction, then that intent will be honored provided certain requirements are met. The [*16]  choice of law provision must be executed in good faith. Goodwin Bros. Leasing, Inc. v. H & B Inc., 597 S.W.2d 303, 306 (Tenn. 1980). The jurisdiction whose law is chosen must bear a material connection to the transaction. Id. The basis for the choice of another jurisdiction’s law must be reasonable and not merely a sham or subterfuge. Id. Finally, the parties’ choice of another jurisdiction’s law must not be “contrary to ‘a fundamental policy’ of a state having [a] ‘materially greater interest’ and whose law would otherwise govern.” Id., n.2 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2) (1971)).

Messer Griesheim, 131 S.W.3d at 475 (quoting Vantage, 17 S.W.3d at 650).1

1 Sky High asserts that the party seeking to invalidate a choice of law provision bears a “heavy burden,” citing Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir. 1999). First, we note that a federal decision, even when interpreting Tennessee law, is not binding on this Court. See Elias v. A & C Distrib. Co., Inc., 588 S.W.2d 768, 771 (Tenn. Ct. App. 1979) (“[D]ecisions of [ f]ederal . . . [c]ourts are not binding authority upon this Court and other State Courts in Tennessee[.]”). Furthermore, the phrase “heavy burden” as quoted by Sky High simply does not appear in the Security Watch Opinion. See Security Watch, 176 F.3d at 375. Finally, we note that the Security Watch Opinion does not concern a choice of law provision, but rather, a forum selection clause. Id.

Here, there is no allegation that the choice of law provision at issue was not executed in good faith. Instead, the choice of law provision fails for largely the same reason that the forum selection clause fails: no material connection exists between the transaction at issue and California. As previously discussed, the contract at issue was signed in Tennessee, between Tennessee residents and a Nevada company, concerning activities taking place in Tennessee. Black’s Law Dictionary  [HN7] defines “material” as “[h]aving some logical connection with the consequential facts.” Black’s Law Dictionary 1066 (9th ed. 2009). The [*17]  simple fact that Sky High’s parent company was founded in California over a decade ago and now operates several facilities there is simply not sufficient to show a logical connection to the transaction at issue in this case.

We do not disagree with Sky High’s assertion that it is reasonable and generally enforceable for a company to “limit where it is subject to suit.”  [HN8] Tennessee law is clear, however, that a company’s choice of law provision will only be honored where the proposed state’s law has a material connection to the transaction at issue. See Messer Griesheim, 131 S.W.3d at 475. Furthermore, the cases that Sky High cites for this proposition do not support their argument in this case. First, in Bright v. Spaghetti Warehouse, Inc., No. 03A01-9708-CV-00377, 1998 Tenn. App. LEXIS 286, 1998 WL 205757 (Tenn. Ct. App. Apr. 29, 1998), the Court of Appeals enforced a choice of law provision designating that Texas law would apply to the contract where the contract was largely negotiated in Texas and the defendant was a Texas corporation. 1998 Tenn. App. LEXIS 286, [WL] at *5. As such, the transaction at issue in Bright had far more contact with the state whose law was named in the contract than is present in this case. Even more puzzling, Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837 (Tenn. Ct. App. 1994), does not involve either a choice of law provision or the application of Tennessee law to determine its enforceability; rather, Thomas [*18]  involves a forum selection clause, whose enforcement was governed by federal law. Id. at 840. Accordingly, the trial court did not err in denying Sky High’s request to enforce the choice of law provision on this basis. Because the contract’s choice of law provision is unenforceable, the general rule of lex loci contractus applies in this case. See Messer Griesheim, 131 S.W.3d at 474. As such, Tennessee law, as the law of the place where the contract was executed, governs the dispute in this case.

II.

Having determined that this case has been properly brought in a Tennessee court and that Tennessee law applies, we next consider whether the trial court erred in refusing to enforce the waiver of liability and the indemnity language contained in the release pursuant to Tennessee law. Here, the contract at issue contains the following language, in relevant part:

3. I hereby voluntarily release, forever discharge, and agree to defend indemnify and hold harmless [Sky High] from any and all claims, demands, causes of action, which are in any way connected with my participation in this activity or any use of [Sky High’s] equipment or facilities, including any such claims which allege negligent acts or omissions of [Sky High]. [*19]

4. Should [Sky High] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs. This means that I will pay all of those attorney’s fees and costs myself.

5. I certify that I have adequate insurance to cover any injury or damage that I may cause or suffer while participating, or else I agree to bear the costs of such injury or damage myself. I further certify that I am willing to assume the risk of any medical or physical condition that I may have.

* * *

8. If the participant is a minor, I agree that this Release of Liability and Assumption of Risk agreement (“RELEASE”) is made on behalf of that minor participant and that all of the releases, waivers and promises herein are binding on that minor participant. I represent that I have full authority as Parent or Legal Guardian of the minor participant to bind the minor participant to this agreement.

9. If the participant is a minor, I further agree to defend, indemnify and hold harmless SKY HIGH SPORTS from any and all claims or suits for personal injury, property damage or otherwise, which are brought by, or on behalf of [*20]  the minor, and which are in any way connected with such use or participation by the minor, including injuries or damages caused by the negligence of [Sky High], except injuries or damages caused by the sole negligence or willful misconduct of the party seeking indemnity.

(Emphasis added).

In the trial court, Sky High argued that the above language constituted a legal and enforceable waiver of liability and indemnity agreement against both the claims brought by Mother and the claims brought on behalf of Son. There is no dispute in this case that  [HN9] “parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence.” Moss v. Fortune, 207 Tenn. 426, 429, 340 S.W.2d 902, 903-04 (Tenn. 1960). These types of agreements, however, are subject to some important exceptions, such as waivers involving gross negligence or willful conduct or those involving a public duty. Id. at 904. These types of provisions must also be clear and unambiguous. See Pitt v. Tyree Org. Ltd., 90 S.W.3d 244, 253 (Tenn. Ct. App. 2002) (citing Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (Tenn. 1964)).

Here, Appellants do not argue, nor did the trial court find, that the liability waiver above was unenforceable on its face against Mother pursuant to the above law. Rather, the trial court found that the waiver of liability [*21]  was ineffective to waive Son’s claims due to Tennessee public policy, as expressed in this Court’s Opinion in Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989). A brief discussion of the facts and holding in Childress is therefore helpful.

A.

In Childress, the parents of a young man with severe intellectual disabilities brought suit on behalf of their son. According to the parents, the young man, who was twenty years old at the time of the accident, was injured while training for the Special Olympics in connection with his school. Id. at 2. Specifically, while on a trip to a local YMCA supervised by a teacher and aide from the Madison County school district, the young man was found on the floor of the YMCA pool. The young man was successfully resuscitated but sustained injuries and incurred medical expenses as a result of the incident. Id.

The parents, individually and on behalf of their son, sued Madison County and the Madison County Board of Education for negligence in failing to properly supervise the students in the pool. After a bench trial, the trial court ruled in favor of the defendants, finding that they had committed no negligence. The parents thereafter appealed to this Court. Id.

This Court first reversed the trial court’s finding [*22]  that the defendants had not committed negligence in failing to supervise the young man while he was in the pool. Id. at 3. The defendants argued, however, that even if they were guilty of negligence, any liability had been waived by parents when the mother “executed a release of all liability of these defendants.” Id. at 3. In response, the parents argued, inter alia, that the waiver was unenforceable because it was against Tennessee public policy to allow parents or guardians to release the claims of incompetent persons. Id. at 6-7.

The Court of Appeals, in what the concurrence characterized as an “excellent opinion,” agreed that the parents could not release the claims of their incompetent son. Id. at 8 (Tomlin, J., concurring). The Childress Court first noted that the adult son had not personally signed the release but that, instead, his mother had signed the document. Id. at 6. The Court held that had the young man signed the release, it would certainly have been invalid, as the young man was “incompetent, incapable of understanding the nature of his action, [and, thus,] the execution could not be given effect.” Id. (citing 44 C.J.S. Insane Persons § 49 (1945)). The question was therefore whether the mother’s action in signing [*23]  the form, which included an indemnity agreement and an assumption of risk clause that were applicable to the son’s claims, were sufficient to bar the young man’s claims.2

2 In Childress, this Court held that by the contract’s own terms, the waiver of liability only applied to the mother. Id. at 6 (“[T]here is no indication in the language of the form or in the manner in which [the mother] signed that she did in fact . . . release or discharge the Special Olympics on [her son’s] behalf”). The Court of Appeals therefore affirmed the trial court’s dismissal of the mother’s individual claims. The Court held, however, that the contract provided that both the indemnity clause and assumption of risk provision applied to both the mother and the son. Id. (“[The mother] did clearly agree to indemnify the Special Olympics ‘from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event.’ . . . [A]ccording to the language of the release, [the mother], as his mother and natural parent, acknowledged on [her son’]s behalf that he would be participating at his own risk.”).

In reaching its decision, the Childress Court analogized “the status of guardians of incompetent persons” with “that of guardians of infants” under well-settled Tennessee law. Id. According to the Court:

 [HN10] The general rule is that a guardian may not waive the rights of an infant or an incompetent. 39 Am. Jur. 2d, Guardian & Ward § 102 (1968); 42 Am. Jur. 2d, Infants § 152 (1969). Specifically, the Supreme Court of Tennessee long ago stated that a guardian cannot settle an existing claim apart from court approval or statutory authority. Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836)[;] Spitzer v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915)[;] Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (M[.]D[.] Tenn. 1963). It has also been held that a guardian may not waive the statutory requirements for service of process on an infant or incompetent by accepting service of process on himself alone. Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).3

Childress, 777 S.W.2d at 6.

3 We note that this statement was supported by what appears to be an incorrect citation to authority. See Watterson v. Watterson, 38 Tenn. 1, 2 (1858) (not involving an infant or service of process); Winchester v. Winchester, 23 Tenn. 51, 51 (1843) (same). Regardless, the Childress Court is correct as to this – 11 – proposition of law. See Taylor v. Walker, 48 Tenn. 734, 738 (Tenn. 1870) (“It is a settled law of this State, that a sale without service of process on an infant who has no regular guardian, is void, and that the want of such service can not [sic] be waived by the appearance of a guardian ad litem.”); Robertson v. Robertson, 32 Tenn. 197, 199 (Tenn. 1852) (“‘A guardian ad litem cannot, by his consent, make his ward a party to a suit.’ The infant must be served with process.”); Wheatley’s Lessee v. Harvey, 31 Tenn. 484, 485 (Tenn. 1852) (holding that “the guardian ad litem had no authority to waive the service of process, without which the infant was no party to the suit”).

The Childress Court then considered the decisions of other states that also refused to enforce waivers made on behalf of minors or incompetent persons. See id. at 6-7 (citing Gibson v. Anderson, 265 Ala. 553, 92 So. 2d 692, 695 (1956) (legal guardian’s acts do not estop ward from asserting rights [*24]  in property); Ortman v. Kane, 389 Ill. 613, 60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract entered into by ward prior to incompetency); Stockman v. City of South Portland, 147 Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward’s property tax exemption); Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961) (guardian cannot waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d 370 (Colo.1981) (ratification by parent of contract executed by child does not bind child); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal injury claim for a ward without court approval); Natural Father v. United Methodist Children’s Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J.Super. 374, 519 A.2d 893 (1986) (guardian cannot settle personal injury claim for ward without court approval)). This Court found the decisions of three states particularly helpful. First, the Court noted that the Mississippi Supreme Court had previously “expressed in broad terms” that under Mississippi law: “‘Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them.'” Childress, 777 S.W.2d at 7 (quoting Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948)). Further, the Court cited with approval the Supreme Court of Connecticut, which held that “an agreement, signed by one of the parents of a minor as a condition to his being allowed to attend a camp, waiving the minor’s claims against a camp for damages in the event of an injury was ineffective to waive the [*25]  rights of the minor against the defendant camp.” Childress, 777 S.W.2d at 7 (citing Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958)). Finally, the Childress Court also noted that the Maine Supreme Court came to a similar conclusion, holding that the release in question was ineffective “because a parent cannot release the child’s action.” Childress, 777 S.W.2d at 7 (citing Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979)).

The Childress Court, however, did not rely solely on the law from other jurisdictions. It also noted the conflict created by such agreements, as well as the fundamental public policy inherent in Tennessee law to protect the financial interests of minors. For example, this Court explained that agreements wherein a parent agrees to indemnify a third party for injuries to his or her child “are invalid as they place the interests of the child or incompetent against those of the parent or guardian.” Childress, 777 S.W.2d at 7 (citing Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961)). In addition, the Court noted that refusing to enforce a waiver of the child’s rights by the parent “is in keeping with the protection which Tennessee has afforded to the rights of infants and minors in other situations.” Childress, 777 S.W.2d at 7. The Childress Court noted that arguments to the contrary exist, specifically with regard to the chilling effect of its chosen rule, stating:

We do not deny that there are good and logical reasons [*26]  for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed. As Helen Keller well said, “Security is mostly a superstition. It does not exist in nature, nor do the children of men as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure or nothing.” Partnow, Quotable Woman, 173 (1977). Ultimately, this case is a determination of who must bear the burden of the risk of injury to infants and minors.

It is not our intention, nor do we feel the result of this case will be, to put a chill on activities such as the Special Olympics. The law is clear that a guardian cannot on behalf of an infant or incompetent, exculpate or indemnify against liability those organizations which sponsor activities for children and the mentally disabled.

Id. at 7-8.

Ultimately, the Court of Appeals agreed with those courts that had held that  [HN11] a parent cannot release a child’s claim against a third party. See id. at 7 (“We, therefore, hold that [the mother] [*27]  could not execute a valid release or exculpatory clause as to the rights of her son against the Special Olympics or anyone else, and to the extent the parties to the release attempted and intended to do so, the release is void.”). The Court likewise held that the indemnity language contained in the contract was invalid. Id. The Childress Court therefore adopted a rule wherein  [HN12] parents or guardians cannot sign indemnity agreements or liability waivers on behalf of minor children or the incompetent. Noting the impact that the rule would have on many organizations, however, this Court specifically invited either the Tennessee Supreme Court or the Tennessee General Assembly to “remedy” this situation if either believed that Tennessee law should be otherwise. Id. at 8 (“If this rule of law is other than as it should be, we feel the remedy is with the Supreme Court or the legislature.”).

An application for permission to appeal to the Tennessee Supreme Court was eventually filed in Childress. The application was denied, however, by order of August 7, 1989. The issue was raised again in the Court of Appeals in 1990 by the case of Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990), perm. app. denied (Tenn. 1991), wherein this Court again held that the [*28]  parent’s purported release of the child’s cause of action was unenforceable, even in the context of a wrongful death action. Id. at 246-47. Again, an application for permission to appeal to the Tennessee Supreme Court was filed and rejected by order of March 11, 1991. In addition, no legislative action has been taken to alter the rule established in Childress over twenty-five years ago.

B.

Sky High does not argue that Childress is not controlling or that it was wrongly decided in 1989. See Tenn. R. Sup. Ct. 4(G)(2) (“Opinions reported in the official reporter . . . shall be considered controlling authority for all purposes unless and until such opinion is reversed or modified by a court of competent jurisdiction.”). As such, there is no dispute that if the Childress rule remains the law in Tennessee, Son’s cause of action is not barred by the waiver and indemnity language contained in the release signed by Mother. Instead, Sky High asserts that this Court should revisit the rule set forth in Childress because changes in constitutional law concerning parental rights following the Tennessee Supreme Court’s decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), and the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), have resulted in a “strong shift” in the law in this [*29]  area across the country. Accordingly, we begin with a brief discussion of the Hawk decision.

In Hawk, paternal grandparents sought court-ordered visitation with their grandchildren pursuant to the Grandparents’ Visitation Act located in Tennessee Code Annotated section 36-6-301 (1985). Hawk, 855 S.W.2d at 575. The facts showed that grandparents and the children’s married parents had an acrimonious relationship and that, eventually, grandparents had been denied any visitation with the children. Id. Under the version of Section 36-6-301 then in existence, a court could order “‘reasonable visitation’ with grandparents if it is ‘in the best interests of the minor child.'” Id. at 576 (quoting Tenn. Code Ann. § 36-6-301). Although the trial court declined to find that parents were unfit, it nevertheless ordered substantial visitation between grandparents and the children. Id. at 577. The trial court also noted that the grandparents “don’t have to answer to anybody when they have the children.” Id.

The Court of Appeals affirmed the judgment of the trial court, and the Tennessee Supreme Court eventually granted the parents’ application for permission to appeal. Id. at 573, 577. The Tennessee Supreme Court first characterized the trial court’s ruling as “a virtually unprecedented intrusion into a protected sphere of family life.” [*30]  Id. at 577. Because Section 36-6-301 “suggest[ed] that this level of interference is permissible,” the Tennessee Supreme Court determined that it was necessary to examine the constitutionality of the statute “as it applies to married parents whose fitness as parents is unchallenged.” Id.

Ultimately, the Tennessee Supreme Court held that the trial court’s and Section 36-6-301’s intrusion into parental decisions was unconstitutional because it interfered with the fundamental liberty interest allowing parents the “right to rear one’s children.” Id. at 578 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923)). According to the Tennessee Supreme Court, this right stemmed from the United States Supreme Court’s “larger concern with privacy rights for the family.” Id. at 578 (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645 (1944)). As such, the Tennessee Supreme Court concluded that the right to privacy inherent in both the United States and Tennessee Constitutions “fully protects the right of parents to care for their children without unwarranted state intervention.” Id. at 579.

The grandparents in Hawk asserted, however, that grandparent visitation was “a ‘compelling state interest’ that warrants use of the state’s parens patriae power to impose visitation in [the] ‘best interests of the children.'” Id. (footnote omitted). The Tennessee Supreme Court rejected this [*31]  argument, however, holding that “without a substantial danger of harm to the child, a court may not constitutionally impose its own subjective notions of the ‘best interests of the child’ when an intact, nuclear family with fit, married parents is involved.” Id. In reaching this decision, the Hawk Court noted that “[i]mplicit in Tennessee case and statutory law has always been the insistence that a child’s welfare must be threatened before the state may intervene in parental decision-making.” Id. at 580 (citing Tenn. Code Ann. § 36-6-101 (allowing court intervention into custody matters in cases of divorce); Tenn. Code Ann. §37-1-113 & -114 (allowing court intervention into custody matters in dependency and neglect)). The Court also noted that its ruling was in line with federal decisions “requir[ing] that some harm threaten a child’s welfare before the state may constitutionally interfere with a parent’s right to rear his or her child.” Hawk, 855 S.W.2d at 580 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15 (1972) (noting that the children at issue would not be harmed by receiving an Amish education); Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925) (noting that the parents’ choice of private school was “not inherently harmful”); Meyer v. Nebraska, 262 U.S. 390, 402-03, 43 S.Ct. 625, 628, 67 L. Ed. 1042 (1923) (opining that “proficiency in a foreign language . . . is not injurious to the health, morals or understanding of the ordinary child”)). As the Tennessee [*32]  Supreme Court explained: “The requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process.” Hawk, 855 S.W.2d at 581. As such, the Hawk Court held that “neither the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions.” Id. The trial court’s award of grandparent visitation absent a showing of harm was therefore deemed unconstitutional. Id. Only a year later, the Tennessee Supreme Court extended the holding in Hawk to be applicable to all fit parents, not merely those part of “an intact, nuclear family[.]” Nale v. Robertson, 871 S.W.2d 674, 678 & 680 (Tenn. 1994).

A similar situation was at issue in the United States Supreme Court’s decision in Troxel v. Granville. In Troxel, the paternal grandparents of two non-marital children filed a petition for grandparent visitation against the children’s mother. Troxel, 530 U.S. at 61. Under the Washington statute applicable at that time, any person could petition the court for visitation with a child at any time so long as the child’s best interests would be served by the visitation. Id. at 60. The trial court eventually entered an order allowing visitation. Id. at 61. The Washington Court of Appeals reversed the trial court’s [*33]  order, holding that the paternal grandparents lacked standing to seek visitation under the statute where no custody proceeding was pending. Id. at 62. In the meantime, the mother remarried, and her new husband adopted the children. Eventually, the Washington Supreme Court reversed the Washington Court of Appeals on the issue of standing, holding that the statute at issue allowed a visitation petition at any time. The Washington Supreme Court concluded, however, that the trial court nevertheless erred in ordering visitation under the statute, holding that the statute infringed on the fundamental right of parents to rear their children. Id. at 63. The United States Supreme Court eventually granted a writ of certiorari on the constitutional issue. Id.

The United States Supreme Court first recognized that “the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65. Citing decades of United States Supreme Court precedent, similar to the Tennessee Supreme Court in Hawk, the Court opined that “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, [*34]  custody, and control of their children.” Id. at 66. The Troxel Court therefore held that the Washington statute, as applied to the facts of the case, “unconstitutionally infringes on [] fundamental parental right[s].” Id. at 67. The Court noted that the statute essentially permitted judges, based solely on their personal evaluation of the child’s best interests, to “disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition[.]” Id. The Court noted that none of the courts below had ever found the parents to be unfit, an important omission, as “there is a presumption that fit parents act in the best interests of their children.” Id. at 68. As such, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Id. at 68-69. Because the trial court failed to honor this presumption, failed to give any weight to the preferences of the parents, and also failed to consider whether the parents had even [*35]  denied visitation, the Troxel Court held that the visitation award was unconstitutional in that case. Id. at 72. The United States Supreme Court declined, however, to rule on “whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.” Id. at 73. Accordingly, the Court did not “define . . . the precise scope of the parental due process right in the visitation context.” Id.

C.

Although this case does not involve grandparent visitation, Sky High argues that the Hawk Court’s rejection of the state’s parens patriae power to interfere in a parenting decision is also applicable to Mother’s decision to waive Son’s claims against Sky High. Because the Hawk holding has never been applied in the context of an exculpatory clause, Sky High cites several decisions relying on the recognition of fundamental parental rights in upholding liability waivers signed by parents on behalf of children. Indeed, Sky Hall asserts that in the wake of the Troxel decision, the law has seen a “strong shift” in favor of enforceability.

Sky High heavily relies on the Ohio Supreme Court’s decision in Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201 (Ohio 1998). In Zivich, the child was injured [*36]  while participating in a non-profit soccer club. Id. at 202. Prior to the child’s participation, his mother signed a registration form for the activity, which contained a waiver of liability against the soccer club on behalf of the child. Id. When the parents sued the soccer club for the child’s injuries, the soccer club responded that the claim was barred by the waiver. The trial court agreed with the soccer club and granted summary judgment in its favor. Id. The Court of Appeals affirmed the dismissal but held that the child’s cause of action, once he reached the age of majority, had not been waived. See Zivich v. Mentor Soccer Club, Inc., No. 95-L-184, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *1 (Ohio Ct. App. Apr. 18, 1997), aff’d on other grounds, 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201 (hereinafter, “Court of Appeals’s Zivich”). Id. One Judge concurred in the result only, opining that that Ohio public policy favored enforcement of the exculpatory agreement against both parents and the child. Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *23 (Ford, J., concurring in result only).

The Ohio Supreme Court likewise affirmed the trial court’s decision that the claims of both the parents and the child were barred by the exculpatory clause contained in the registration form. Zivich, 696 N.E.2d at 207. In reaching this result, the Ohio Supreme Court first rejected [*37]  the parents’ argument that the agreement should not be enforced on public policy grounds, given that contracts entered into by minors were generally unenforceable in Ohio. Id. at 204. Rather, the Ohio Supreme Court held that Ohio public policy actually favored enforcement of the agreement, citing Ohio statutes enacted to “encourage landowners to open their land to public use for recreational activities without fear of liability.” Id. at 204-05 (citing Ohio Rev. Code Ann. §§ 1533.18 & 1533.181). Indeed, the Ohio Supreme Court noted that, although the statute was not applicable to the case-at-bar, the Ohio General Assembly had recently enacted statutes that “accord qualified immunity to unpaid athletic coaches and sponsors of athletic events.” Id. at 205 (citing Ohio Rev. Code Ann. §§ 2305.381 & 2305.382). The Zivich Court also noted the inherent benefits in allowing children to participate in sporting activities:

Organized recreational activities offer children the opportunity to learn valuable life skills. It is here that many children learn how to work as a team and how to operate within an organizational structure. Children also are given the chance to exercise and develop coordination skills. Due in great part to the assistance of volunteers, nonprofit organizations are able to offer these [*38]  activities at minimal cost. . . . Clearly, without the work of its volunteers, these nonprofit organizations could not exist, and scores of children would be without the benefit and enjoyment of organized sports. Yet the threat of liability strongly deters many individuals from volunteering for nonprofit organizations. Developments in the Law–Nonprofit Corporations–Special Treatment and Tort Law (1992), 105 Harv. L. Rev. 1667, 1682. Insurance for the organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs. Markoff, Liability Threat Looms: A Volunteer’s Thankless Task (Sept. 19, 1988), 11 Natl. L.J. 1, 40. Thus, although volunteers offer their services without receiving any financial return, they place their personal assets at risk.

Id. Given these risks, the Ohio Supreme Court noted that these organizations “could very well decide that the risks are not worth the effort,” which would reduce the number of low-cost sporting activities available to the youth. Id.

In addition to the Ohio public policy favoring low-cost youth sporting activities, the Zivich Court noted that its decision aligned with “the importance of parental authority.” Id. [*39]  (citing Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *23 (Ford, J., concurring in result only)) (agreeing with the reasoning espoused by Judge Ford in his concurrence to the Court of Appeals’s Zivich). As the Zivich Court explained, parents have a right to raise their children, a fundamental liberty interest in the “the care, custody, and management of their offspring[,]” and “a fundamental, privacy-oriented right of personal choice in family matters,” all of which are protected by due process. Id. at 206 (citing Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *24 (Ford, J., concurring in result only)). In addition, the Ohio Supreme Court provided examples where Ohio statutory law empowers parents to make decisions for their children, including the right to consent or decline medical treatment. Id. (citing Ohio Rev. Code Ann. § 2317.54[C]; Lacey v. Laird, 166 Ohio St. 12, 19, 1 O.O.2d 158, 161, 139 N.E.2d 25, 30 (Ohio 1956) (Hart, J., concurring)). Thus, the Zivich Court concluded that invalidating the release would be “inconsistent with conferring other powers on parents to make important life choices for their children.” Id. at 206 (citing Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *25-26 (Ford, J., concurring in result only)). According to the Ohio Supreme Court, the decision to allow the child to participate in a potentially dangerous activity after having signed a liability waiver on behalf of the child is “an important family decision” in which a parent makes a decision regarding whether “the benefits to her child outweighed the risk of physical injury.” Id. at 207. After concluding that this decision is protected by the fundamental right of parental authority, the Ohio Supreme Court ultimately held that the decision could not be “disturb[ed]” by the courts. Id. Accordingly, the Zivich Court ruled that the waiver was enforceable.

Sky High emphasizes that at least three other states have similarly held that pre-injury waivers of a minor’s claims by parents were enforceable due to the court’s inability to interfere with fit parents’ decisions. See Saccente v. LaFlamme, No. CV0100756730, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (Mass. 2002); BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345 (Md. 2013). First, in Saccente v. LaFlamme, the child’s father signed an indemnity agreement on behalf of his daughter to participate in horseback riding lessons. Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *1. When the child was injured and the mother sued on her behalf, the defendant farm raised the indemnity agreement as a defense. Id. The Superior Court of Connecticut ultimately held that the indemnity agreement signed by the child’s parent was enforceable to bar the child’s claim. 2003 Conn. Super. LEXIS 1913, [WL] at 7.4 In reaching this result, the Saccente Court relied, in part, on the fundamental parental rights recognized by the United States Supreme Court in Troxel. 2003 Conn. Super. LEXIS 1913, [WL] at *6 (citing Troxel, 530 U.S. at 65). In the Saccente Court’s view, a parent’s right to make decisions regarding the rearing of children extends to “the right to control their associations,” including the “[t]he decision here by her father to let the minor plaintiff waive her claims [*40]  against the defendants in exchange for horseback riding lessons at their farm[.]” Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *6-7 (distinguishing cases where releases have been held invalid by the fact that Connecticut statutory law did not forbid parents from settling the claims of their children).

4 The Superior Court in Saccente comes to the opposite conclusion as the Superior Court previously came to in Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn. Super. Ct. 1958). The Saccente Court distinguished Fedor on the basis that parents there had “had no choice but to sign the waiver” in order to participate in a Boy Scout camp for low-income families. Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *4. The Saccente Court concluded that the same was not true of the child’s horseback riding lessons.

In Sharon v. City of Newtown, a student sued the city for injuries she had incurred while participating in cheerleading practice at a public school. Sharon, 769 N.E.2d at 741. In rejecting the student’s argument that a waiver signed by the student’s father was invalid, the Massachusetts Supreme Judicial Court held that enforcing the waiver “comports with the fundamental liberty interest of parents in the rearing of their children, and is not inconsistent with the purpose behind our public policy permitting minors to void their contracts.” Id. at 747. In addition, the Sharon Court noted that its decision was in line with Massachusetts statutes exempting certain nonprofit organizations, volunteer managers and coaches, and owners of land who permit the public to use their land for recreational purposes without imposing a fee from liability for negligence. Id. (noting that enforcement also comports with a policy of “encouragement of athletic activities [*41]  for minors” and does not conflict with Massachusetts statutory law requiring court approval of minor settlements).

Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the defendant wholesale club sought to dismiss a negligence claim brought on behalf of a minor due to the fact that the parents had signed an exculpatory agreement on behalf of the child. Rosen, 80 A.3d at 346. The Maryland Court of Appeals, Maryland’s high court, held that the exculpatory agreement was valid, rejecting the parents’ argument that the agreement should be invalidated through the States’ parens patrie authority. The Rosen Court noted, however, that such authority was only invoked where a parent is unfit or in the context of juvenile delinquency. Id. at 361. As the Maryland Court of Appeals explained: “We have, thus, never applied parens patriae to invalidate, undermine, or restrict a decision, such as the instant one, made by a parent on behalf of her child in the course of the parenting role.” Id. at 362. Ultimately, the Maryland Court of Appeals upheld the validity of the agreement, relying also on Maryland statutes allowing parents to make financial, medical, mental health, and educational decisions for their children Id. (citing Md. Code Ann., Cts. & Jud. Proc. § 6-405 (allowing parents [*42]  to settle claims on behalf of minors without court approval);5 Md. Code Ann., Educ. § 7-301 (allowing parents the choice to homeschool their children); Md. Code Ann., Health-Gen. § 10-610 (allowing a parent to commit a child to mental health services under limited circumstances); Md. Code Ann., Health-Gen. § 20-102 (giving parents the authority to consent to a minor’s medical treatment)). At least one federal case interpreting state law has also enforced such an agreement. See Kelly v. United States, No. 7:10-CV-172-FL, 2014 U.S. Dist. LEXIS 135289, 2014 WL 4793009, at *5 (E.D. N.C. Sept. 25, 2014) (holding that upholding releases signed by parents on behalf of children “serve[s] the 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”).

5 The Rosen Court found this statute particularly instructive, as other jurisdictions where exculpatory agreements signed by parents were unenforceable had often relied upon statutes that required court approval for parents to settle lawsuits on behalf of minors as next friend. Rosen, 80 A.3d at 356-57; see also infra, for additional discussion of this factor.

In addition to these cases, it appears that other jurisdictions have likewise upheld similar exculpatory agreements signed on behalf of children without reliance on the fundamental parental rights doctrine. See Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Ct. App. 1990) (holding, with little analysis regarding the public policy in favor or against such a rule, that “[a] parent may contract on behalf of his or her children” even in the context of a release); Kondrad ex rel. McPhail v. Bismarck Park Dist., 2003 ND 4, ¶ 5, 655 N.W.2d 411, 413 (including no analysis as to the issue of whether [*43]  a parent may waive claims on behalf of a minor); Osborn v. Cascade Mountain, Inc., 2003 WI App 1, ¶ 10, 259 Wis. 2d 481, 655 N.W.2d 546 (same). In still other states, court decisions refusing to enforce such agreements have been legislatively overturned. See Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002), superseded by Colo. Rev. Stat. Ann. § 13-22-107 (declaring it the public policy of Colorado to permit “a parent of a child to release a prospective negligence claim of the child against” organizations that provide “sporting, recreational, educational, and other activities where certain risks may exist”); Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008), somewhat superseded by Fla. Stat. Ann. § 744.301 (permitting a parent to waive a child’s future cause of action only as to the inherent risks of an activity against a “commercial activity provider,” not claims resulting from the provider’s own negligence). Sky High therefore argues that this Court should follow the “strong shift” in the law in favor of enforceability based upon Tennessee and federal constitutional law regarding the state’s inability to interfere in the parenting decisions of fit parents.

That is not to say, however, that jurisdictions that enforce exculpatory agreements or liability waivers signed on behalf of children by their parents enjoy a distinct majority in the United States. Indeed, even as recently as 2010, one court [*44]  characterized the state of the law as the opposite–that “a clear majority” of courts have held in favor of finding such agreements unenforceable. Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010). Compared with the approximately nine jurisdictions wherein courts or legislatures have enforced such agreements, our research has revealed at least fourteen jurisdictions wherein courts have specifically held that exculpatory, release, or indemnification agreements signed by parents on behalf of children are unenforceable. See Chicago, R.I. & P. Ry. Co. v. Lee, 92 F. 318, 321 (8th Cir. 1899); J.T. ex rel. Thode v. Monster Mountain, LLC, 754 F. Supp. 2d 1323, 1328 (M.D. Ala. 2010) (applying Alabama law and “the weight of authority in other jurisdictions”); Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn. Super. Ct. 1958); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 145, 634 N.E.2d 411, 413, 199 Ill. Dec. 572 (Ill. 1994); Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979); Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1 (Mich. 2010); Khoury v. Saik, 203 Miss. 155, 33 So. 2d 616, 618 (1948) (reaffirmed in Burt v. Burt, 841 So. 2d 108 (Miss. 2001)); Fitzgerald v. Newark Morning Ledger Co., 111 N.J. Super. 104, 108, 267 A.2d 557, 559 (N.J. Law. Div. 1970); Valdimer v. Mount Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 24, 172 N.E.2d 283, 285, 210 N.Y.S.2d 520 (N.Y. 1961); Ohio Cas. Ins. Co. v. Mallison, 223 Or. 406, 412, 354 P.2d 800, 803 (Or. 1960); Shaner v. State Sys. of Higher Educ., 40 Pa. D. & C.4th 308, 313 (Com. Pl. 1998), aff’d without opinion, 738 A.2d 535 (Pa. Commw. Ct. 1999); Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, somewhat superseded by Utah Code Ann. § 78B-4-203 (allowing a release against an “equine or livestock activity sponsor”);6 Munoz v. II Jaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993); Scott By & Through Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 494, 834 P.2d 6, 11 (Wash. 1992).

6 The Utah Supreme Court has recently announced that Hawkins remains valid law as to whether public policy invalidates an exculpatory agreement “in the absence of statutory language.” See Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 28, 301 P.3d 984, 992

A few courts refusing to enforce these agreements have expressly considered, and rejected, similar arguments contending that enforcement is necessary to comport with a parent’s fundamental right to control his or her children. For example, the court in Woodman ex rel. Woodman v. Kera LLC rejected this argument on the ground that under such an analysis “a parent would be able to bind the child in any contract, [*45]  no matter how detrimental to the child,” including contracts where the law is well-settled that parents may not consent on behalf of their children. Woodman, 785 N.W.2d at 8 (quoting McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C., 428 Mich. 167, 405 N.W.2d 88 (1987) (noting the general rule that “a parent has no authority to waive, release, or compromise claims by or against a child”). Rather, the Woodman Court noted that if such a massive shift in the law was warranted, the change should originate in the legislature, rather than the courts. Id. at 9-10.

The Iowa Supreme Court likewise considered an argument that the enforcement of pre-injury releases was in line with the “public policy giving deference to parents’ decisions affecting the control of their children and their children’s affairs.” Galloway, 790 N.W.2d at 256. The Galloway Court recognized that parents have a fundamental liberty interest “in the care, custody, and control of [their] children[.]” Id. (quoting Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003)). The Court noted, however, that this interest was “restricted to some extent by the public’s interest in the best interests of children.” Id. In support, the Court cited Iowa law preventing parents from waiving child support payments, preventing parents from receiving payments on behalf of a child of more than $25,000.00, and preventing conservators from compromising [*46]  a child’s cause of action absent court approval. Id. at 256-57 (citing Iowa Code § 598.21C(3) (stating that any modification to child support is void unless approved by the court); Iowa Code § 633.574 (limiting a parent’s ability to receive property on behalf of child to an aggregate value of $25,000.00); Iowa Code § 633.647(5) (requiring a child’s conservator to obtain court approval for the settlement of the child’s claim)). The Court further rejected the defendants’ claim that “recreational, cultural, and educational opportunities for youths will cease because organizations sponsoring them will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability,” finding such fear “speculative and overstated.” Id. at 258-59. The Galloway Court therefore held that inherent in Iowa law was “a well-established public policy that children must be accorded a measure of protection against improvident decisions of their parents.” Id. at 256. The Iowa Supreme Court therefore held that public policy prevented enforcement of the pre-injury release signed by a student’s mother regarding injuries the child sustained while on an educational field trip organized by a state university. Id. at 253.

Although the holding was later superseded by statute, the reasoning of the Colorado [*47]  Supreme Court on this issue is also illuminating. Cooper v. Aspen Skiing Co. involved a child injured in a skiing accident whose mother had signed a pre-injury release on his behalf. Cooper, 48 P.3d at 1230. In invalidating the release, the Colorado Supreme Court specifically held that a parent’s fundamental right to “the care, custody, and control of their children” did not extend to a parent’s decision to disclaim a minor’s potential future recovery for injuries caused by the negligence of a third party. Id. at 1235 n.11 (quoting Troxel, 530 U.S. at 65). As the Cooper Court explained:

 [HN13] A parental release of liability on behalf of his child is not a decision that implicates such fundamental parental rights as the right to “establish a home and bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L. Ed. 1042 (1923), and the right “to direct the upbringing and education of children under their control,” Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925). Moreover, it does not implicate a parent’s “traditional interest . . . with respect to the religious upbringing of their children,” Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), or such medical decisions as a parent’s right to “retain a substantial . . . role” in the decision to voluntary commit his child to a mental institution (with the caveat that the child’s rights and the physician’s independent judgment also plays a role), Parham v. J.R., 442 U.S. 584, 604, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979); rather [*48]  a parental release on behalf of a child effectively eliminates a child’s legal right to sue an allegedly negligent party for torts committed against him. It is, thus, not of the same character and quality as those rights recognized as implicating a parents’ fundamental liberty interest in the “care, custody, and control” of their children.

Furthermore, even assuming arguendo, that a parental release on behalf of a minor child implicates a parent’s fundamental right to the care, custody, and control of his child, this right is not absolute. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944); People v. Shepard, 983 P.2d 1, 4 (Colo. 1999). Indeed, “[a]cting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.” Prince v. Massachusetts, 321 U.S. [at] 166 . . . (footnotes omitted). In fact, “in order to protect a child’s well-being, the state may restrict parental control.” Shepard, 983 P.2d at 4.

Cooper, 48 P.3d at 1235 n.11.

Appellants argue that this Court should likewise reject any argument that the enforcement of liability waivers against minors is required by the fundamental parental rights doctrine. Based upon this split of authority, we must determine whether Tennessee public [*49]  policy favors a change in the rule established by this Court in Childress.

D.

[HN14] “‘[T]he public policy of Tennessee is to be found in its constitution, statutes, judicial decisions and applicable rules of common law.'” In re Baby, 447 S.W.3d 807, 823 (Tenn. 2014) (quoting Cary v. Cary, 937 S.W.2d 777, 781 (Tenn.1996)). “Primarily, it is for the legislature to determine the public policy of the state, and if there is a statute that addresses the subject in question, the policy reflected therein must prevail.” Hyde v. Hyde, 562 S.W.2d 194, 196 (Tenn. 1978) (citing United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897)). In order to determine whether a contract “is inconsistent with public policy, courts may consider the purpose of the contract, whether any violation is inherent in the contract itself, as opposed to merely a collateral consequence, and, finally, whether the enforcement of the contract will have a detrimental effect on the public.” Baby, 447 S.W.3d at 823 (citing Baugh v. Novak, 340 S.W.3d 372, 382 (Tenn. 2011)). “‘The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.'” Home Beneficial Ass’n v. White, 180 Tenn. 585, 589, 177 S.W.2d 545, 546 (1944) (quoting Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356-57, 51 S. Ct. 476, 477, 75 L. Ed. 1112 (1931)).

Here, there can be no doubt that the Tennessee public policy, as evidenced by the Tennessee Supreme Court’s decision in Hawk, does not favor intervention in the parental decisions of fit parents. See Hawk, 855 S.W.2d at 579. As such, where a fit [*50]  parent makes a parental decision, our courts generally will not interfere. Id. Courts in Tennessee have cited Hawk to protect a parent’s right most often in the context of dependency and neglect proceedings, termination of parental rights proceedings, parentage actions, child custody proceedings, and grandparent visitation proceedings. See, e.g., In re Carrington H., 483 S.W.3d 507 (Tenn.), cert. denied sub nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44, 196 L. Ed. 2d 28 (2016) (involving termination of parental rights); Lovlace v. Copley, 418 S.W.3d 1, 26 (Tenn. 2013) (involving grandparent visitation); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007) (involving termination of parental rights); In re Adoption of Female Child, 896 S.W.2d 546, 548 (Tenn. 1995) (involving custody of a child); Broadwell by Broadwell v. Holmes, 871 S.W.2d 471, 476-77 (Tenn. 1994) (limiting parental immunity only “to conduct that constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody”); McGarity v. Jerrolds, 429 S.W.3d 562 (Tenn. Ct. App. 2013) (involving grandparent visitation); State v. Cox, No. M1999-01598-COA-R3-CV, 2001 Tenn. App. LEXIS 496, 2001 WL 799732, at *10 (Tenn. Ct. App. July 17, 2001) (involving dependency and neglect); Matter of Hood, 930 S.W.2d 575, 578 (Tenn. Ct. App. 1996) (involving a parentage action). In one case, Hawk was cited as support for a parent’s right to control a child’s access to the telephone and to “consent . . . vicariously to intercepting, recording and disclosing the child’s conversation with [f]ather.” Lawrence v. Lawrence, 360 S.W.3d 416, 421 (Tenn. Ct. App. 2010). In another case, however, this Court held that a parent’s [*51]  fundamental right to rear his or her children was not violated by a Tennessee law allowing physicians to prescribe contraceptives to minors without parental authorization. See Decker v. Carroll Acad., No. 02A01-9709-CV-00242, 1999 Tenn. App. LEXIS 336, 1999 WL 332705, at *13 (Tenn. Ct. App. May 26, 1999).

Additionally, this policy of protecting fundamental parental rights is often reflected in our statutory law. For example, Tennessee Code Annotated section 34-1-102 provides that parents are equally charged with the “care, management and expenditure of [their children’s] estates.” Another statute, Tennessee Code Annotated section 37-1-140, states in relevant part:

A custodian to whom legal custody has been given by the court under this part has the right to the physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care and the right and duty to provide for the care, protection, training and education, and the physical, mental and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.

Tenn. Code Ann. § 37-1-140(a).7 Other statutes littered throughout the Tennessee Code also reflect this policy. See, e.g., Tenn. Code Ann. § 33-8-303 (giving a parent authority to submit minor child to convulsive therapy, but only if neither the child nor the child’s [*52]  other parent object to the treatment); Tenn. Code Ann. § 36-3-106 (giving a parent authority to consent to a minor’s marriage); Tenn. Code Ann. § 47-25-1105 (giving parents the authority to solicit minor child’s name, photograph, or likeness); Tenn. Code Ann. § 49-2-124 (giving a parent authority to submit their minor child to involuntary mental health or socioemotional screening); Tenn. Code Ann. § 50-5-105 (giving parents the authority to consent to the employment of their minor children aged sixteen or seventeen with certain restrictions set by the state); Tenn. Code Ann. § 62-38-305 (giving a parent the authority to consent to a minor’s body piercing, given certain limitations); Tenn. Code Ann. § 68-1-118 (allowing parents to consent to the release of protected health information of their minor children); Tenn. Code Ann. § 68-117-104 (allowing parents to consent to minor’s use of tanning devices).

7 We note that this Court recently held that under the specific language of the trust agreement at issue, it was “without question the trustee has the right under the Trust Agreement to agree to arbitration binding the Minor beneficiary as to claims or demands once they have arisen.” Gladden v. Cumberland Trust & Inv. Co., No. E2015-00941-COA-R9-CV, 2016 Tenn. App. LEXIS 203, 2016 WL 1166341, at *5 (Tenn. Ct. App. Mar. 24, 2016), perm. app.granted (Aug. 18, 2016). The Court held however that the trustee had no power to agree to arbitration of unknown future claims. 2016 Tenn. App. LEXIS 203, [WL] at *6. The situation is distinguishable from this cause for three reasons: (1) the case involved a question of a trustee’s authority under a specific trust agreement, rather than a question of a parent’s authority based upon the Tennessee and federal constitutions; (2) the Court held that the language of the agreement, rather than public policy considerations, required it to hold that the trustee had no power to agree to arbitrate unknown disputes; (3) the agreement at issue was an agreement to arbitrate, which limits only the forum in which a claim may be raised, rather than limiting liability. See Buraczynski v. Eyring, 919 S.W.2d 314, 319 (Tenn. 1996) (holding that arbitration agreements “do not limit liability, but instead designate a forum that is alternative to and independent of the judicial forum”). As such, the Gladden Opinion is inapposite to the issues raised in this case. Furthermore, because the Tennessee Supreme Court recently granted permission for appeal of the Gladden case, we await final resolution of the issues decided therein. – 26 –

The fundamental parental rights doctrine, however, is not absolute. See Prince, 321 U.S. at 166 (“Acting to guard the general interest in youth’s well[-]being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways.”) (footnotes omitted). Indeed, as recently as 2011, the Tennessee Supreme [*53]  Court recognized the courts’ power to invalidate certain contracts made by parents on behalf of minors. See Wright ex rel. Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011). In Wright, a minor was seriously injured in an automobile accident, and her father retained the services of an attorney to represent him and the child in a lawsuit to recover for her injuries. Id. at 170. In connection with the representation, the father signed a one-third contingency fee with the attorney. The agreement noted, however, that fees on behalf of the minor would require court approval. The father thereafter filed a complaint on behalf of the child as next friend. Because the child’s parents were divorced, the trial court eventually appointed a guardian ad litem for the child. Ultimately, the parties agreed to settle the case for $425,000 on behalf of the child, as well as courts costs, guardian ad litem fees, and other expenses. The document evincing the agreement also indicated that the parties agreed to the “contractual attorney’s fees.” Id. at 171.

A dispute soon arose between the guardian ad litem and the retained attorney over the amount of attorney’s fees owed to the attorney; while the retained attorney contended he was entitled to one-third of [*54]  the settlement amount, the guardian ad litem asserted that the retained attorney was only entitled to a reasonable fee as set by the court. Id. The trial court eventually entered an order awarding the retained attorney his full fee under the contingency contract. Id. at 172. The Court of Appeals reversed and remanded for a recalculation of the fees. Id. The trial court held a hearing and ultimately awarded $131,000.00 in attorney’s fees. Id. at 175 (citing Wright v. Wright, No. M2007-00378-COA-R3-CV, 2007 Tenn. App. LEXIS 764, 2007 WL 4340871, at *1 (Tenn. Ct. App. Dec. 12, 2007) (hereinafter, “Wright I”)). After the fee was affirmed by the Court of Appeals, the Tennessee Supreme Court granted the guardian ad litem’s application for permission to appeal. Id. at 176.

As is relevant to this case, the Tennessee Supreme Court first reaffirmed “the long-standing” principle in Tennessee that “a next friend representing a minor cannot contract with an attorney for the amount of the attorney’s fee so as to bind the minor[.]” Id. at 179 (citing City of Nashville v. Williams, 169 Tenn. 38, 82 S.W.2d 541, 541 (1935)). In reaching this decision, the Wright Court noted two statutes allowing Tennessee courts the power to approve settlements made on behalf of minors. Wright, 337 S.W.3d at 178. First, Tennessee Code Annotated section 34-1-121 provides, in pertinent part:

In any action, claim, or suit in which a minor or person with a disability is a party [*55]  or in any case of personal injury to a minor or person with a disability caused by the alleged wrongful act of another, the court in which the action, claim, or suit is pending, or the court supervising the fiduciary relationship if a fiduciary has been appointed, has the power to approve and confirm a compromise of the matters in controversy on behalf of the minor or person with a disability. If the court deems the compromise to be in the best interest of the minor or person with a disability, any order or decree approving and confirming the compromise shall be binding on the minor or person with a disability.

Tenn. Code Ann. § 34-1-121(b); see also Vannucci v. Memphis Obstetrics & Gynecological Ass’n, P.C., No. W2005-00725-COA-R3-CV, 2006 Tenn. App. LEXIS 464, 2006 WL 1896379, at *11 (Tenn. Ct. App. July 11, 2006) (holding that where a settlement involves a minor, section 34-1-121 “requir[es]” that the trial court “go beyond its normal role” and approve or disapprove of the proposed settlement). Likewise, Section 29-34-105 requires an in-chambers hearing attended by both the minor and his or her guardian in order to approve a settlement totaling more than $10,000.00. From these statutes, the Tennessee Supreme Court concluded that  [HN15] Tennessee public policy allows courts to “assume a special responsibility to protect a minor’s interests.” [*56]  Wright, 337 S.W.3d at 178. The Wright Court therefore affirmed the ruling that the retained attorney was not entitled to the contractual fee, but merely to a reasonable fee as set by the court. Id. Ultimately, the Tennessee Supreme Court affirmed the trial court’s award of $131,000.00 in attorney’s fees. Id. at 188.

From Wright, we can glean that  [HN16] Tennessee’s public policy includes a well-settled principle requiring courts to act as parens patriae to protect a child’s financial interests. Indeed, Tennessee statutory law, the most salient source of Tennessee public policy, includes several statutes that offer protections for a minor’s financial interests, even if that protection interferes with a parent’s decisions. See Tenn. Code Ann. § 29-34-105 (requiring court approval of settlements on behalf of minors of more than $10,000.00); Tenn. Code Ann. § 34-1-102(a) (limiting a parent’s use of child’s income to only “so much . . . as may be necessary . . . (without the necessity of court authorization) for the child’s care, maintenance and education”); Tenn. Code Ann. § 34-1-121(b) (giving the court power to approve settlements on behalf of minors where the settlement is in the minor’s best interest); Tenn. Code Ann. § 34-1-122 (authorizing the court to approve or disapprove of “expenditures of income or principal of the property of [*57]  the minor or person with a disability” and providing limits on the type of “gift program[s]” that may be approved). The Tennessee Supreme Court previously characterized these statutes as “plac[ing] the responsibility and burden upon the court to act for the minor.” Busby v. Massey, 686 S.W.2d 60, 63 (Tenn. 1984). When these statutes are implicated, “the trial court is not bound by desires, interests or recommendations of attorneys, parents, guardians or others.” Id. (citing Rafferty v. Rainey, 292 F. Supp. 152 (E.D. Tenn. 1968)); see also Wright I, 2007 Tenn. App. LEXIS 764, 2007 WL 4340871, at *1 (“By caselaw and by statute the settlement of a case brought by a minor for personal injuries must be approved by the court, and the court must ensure that the settlement itself is in the best interests of the minor.”) (emphasis added).

In addition to statutes on this subject, Tennessee caselaw provides another significant protection for the financial interests of a minor even against his or her parent: a parent may not, by agreement, waive the child’s right to support from the other parent. Huntley v. Huntley, 61 S.W.3d 329, 336 (Tenn. Ct. App. 2001) (citing Norton v. Norton, No. W1999-02176-COA-R3-CV, 2000 Tenn. App. LEXIS 13, 2000 WL 52819, at *4 (Tenn. Ct. App. Jan.10, 2000)). As this Court explained: “It is against public policy to allow the custodial parent to waive the child’s right to support[,]” as the child is the beneficiary of the support, not the parent. [*58]  A.B.C. v. A.H., No. E2004-00916-COA-R3-CV, 2005 Tenn. App. LEXIS 18, 2005 WL 74106, at *7 (Tenn. Ct. App. Jan. 13, 2005) (citing Pera v. Peterson, 1990 Tenn. App. LEXIS 874, 1990 WL 200582 (Tenn. Ct. App. Dec. 14, 1990)); see also Berryhill v. Rhodes, 21 S.W.3d 188, 192, 194 (Tenn. 2000) (holding that private agreements to circumvent child support obligations are against public policy). Such agreements are therefore “void as against public policy as established by the General Assembly.” Witt v. Witt, 929 S.W.2d 360, 363 (Tenn. Ct. App. 1996); see also Galloway, 790 N.W.2d at 256-57 (relying on Iowa law preventing parents from entering into agreements waiving child support as a reason for its rule invalidating waivers of liability signed by parents on behalf of minors). The Tennessee Supreme Court has likewise held that parents engaged in a child custody dispute “cannot bind the court with an agreement affecting the best interest of their children.” Tuetken v. Tuetken, 320 S.W.3d 262, 272 (Tenn. 2010). Finally, we note that Rule 17.03 of the Tennessee Rules of Civil Procedure allows a court to appoint a guardian ad litem for a child “at any time after the filing of the complaint” in two instances: (1) when the child has no duly appointed representative; or (2) when “justice requires” the appointment. Thus, Rule 17.03 allows the appointment of a guardian ad litem even when the child is represented by his or her parent in the capacity of next friend. See Gann v. Burton, 511 S.W.2d 244, 246 (Tenn. 1974) (holding that the court’s decision to appoint a guardian ad litem when “justice requires” is discretionary and is determined on a case-by-case basis). [*59]

Tennessee statutory law also contains other protections that arguably interfere with a parent’s right to the custody and control of his or her children, albeit not in a financial context. See Tenn. Code Ann. § 34-6-307 (granting a parent the right to refuse medical treatment for his or her child, unless the parent’s decision “jeopardize[s] the life, health, or safety of the minor child”); Tenn. Code Ann. § 37-10-303 (granting the parent the right to consent to his or her child’s abortion, but providing that, in the absence of parental consent, consent may be obtained from the court); Tenn. Code Ann. §§ 37-10-401 to -403 (placing on the parent the duty to vaccinate a child, unless certain religious exceptions apply); Tenn. Code Ann. § 49-6-3001 (requiring parents to enroll their school-aged children in school, unless exempted); Tenn. Code Ann. § 49-6-3009 (making it a crime for a parent who has control of a child to allow the child to be truant from a remedial institution); Tenn. Code Ann. § 49-6-3050 (regulating home schooling); Term. Code Ann. § 68-34-107 (allowing a physician to provide a minor with contraceptive if the minor obtains parental consent or simply if the minor “requests and is in need of birth control procedures, supplies or information”). Indeed, one statute specifically invalidates a contract entered into by the biological and adoptive parents if the [*60]  parties agree to visitation post-adoption. See Tenn. Code Ann. § 36-1-121(f) (“Any provision in an order of the court or in any written agreement or contract between the parent or guardian of the child and the adoptive parents requiring visitation or otherwise placing any conditions on the adoption shall be void and of no effect whatsoever[.]”).

Because of the statutory and caselaw in Tennessee providing protection for a minor’s financial and other interests, we first note that Tennessee law is clearly distinguishable from many of the cases in which enforcement of liability waivers was held to be appropriate. For example, the Connecticut Superior Court in Saccente v. LaFlamme specifically noted that its decision did not conflict with Connecticut public policy as evidenced by statutes because there was “no Connecticut law, and the [parties have] cited none, which affords such specific protections for minors.” Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *6-7 (citing Conn. Gen. Stat. Ann. § 45a-631 (allowing parents to settle the claims of their children if the amount recovered is less than $10,000.00)). Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the Maryland Court of Appeals noted that rather than having no statute prohibiting the practice of parental consent to minor settlements without [*61]  court approval, such practice was actually authorized by Maryland statutory law. See Rosen, 80 A.3d at 362 (citing Md. Code Ann., Cts. & Jud. Proc. § 6-405 (allowing parents to settle “any” claims on behalf of minors without court approval)). Clearly, the legal framework in Tennessee differs significantly from these other jurisdictions in this regard.

In addition, unlike in Sharon and Zivich, Sky High has cited to no statutes, nor has our research revealed any, that reflect Tennessee public policy in favor of sheltering from liability owners of land opened for recreational uses or unpaid athletic coaches and sponsors. See Sharon, 769 N.E.2d at 747 (citing Mass. Gen. Laws Ann. ch. 21, § 17C; Mass. Gen. Laws Ann. ch. 231, § 85V); Zivich, 696 N.E.2d at 204-05 (citing Ohio Rev. Code Ann. §§ 1533.18; 1533.181; 2305.381; 2305.382); Indeed, in Justice Deborah L. Cook’s concurrence in Zivich, she emphasized that her decision to concur was “firmly grounded in the public policy of the General Assembly, as evinced by the legislative enactments cited by the majority,” rather than any constitutional policy regarding parental rights. Zivich, 696 N.E.2d at 208 (Cook, J., concurring). Tennessee law has no such statutes that evince the Tennessee General Assembly’s desire to shield the operators of for-profit trampoline parks from liability.

Based on the foregoing, we conclude that the Colorado Supreme Court’s analysis on [*62]  this issue best aligns with existing Tennessee law. See Cooper, 48 P.3d at 1235 n.11. First, we note that Sky High has cited no law in which the fundamental right to care for and to control children, as recognized by the Tennessee Supreme Court in Hawk, has ever been utilized to uphold financial contracts entered into by the parent on behalf of the child, especially where the child’s right to recover money may be negated by the parents’ agreement. See id. (holding that “[a] parental release of liability on behalf of his child is not a decision that implicates such fundamental parental rights”). Indeed,  [HN17] where a child’s financial interests are threatened by a parent’s contract, it appears to be this State’s longstanding policy to rule in favor of protecting the minor. See Huntley, 61 S.W.3d at 336 (preventing parent from agreeing to waive child support). Moreover, as previously discussed, our General Assembly has enacted a multitude of statutes evincing a policy of protecting children’s finances from improvident decisions on the part of their parents. See, e.g., Tenn. Code Ann. §§ 34-1-102; 34-1-121(b). This policy of allowing courts to “assume a special responsibility to protect a minor’s interests” was reaffirmed by the Tennessee Supreme Court in [*63]  2011, well after the decisions in both Hawk and Troxel. See Wright, 337 S.W.3d at 178. Accordingly,  [HN18] parents in Tennessee, like parents in Colorado, simply do not have plenary power over the claims of their children, regardless of their fundamental parental rights. C.f. Cooper, 48 P.3d at 1235 n.11 (holding that a parent’s right to the custody, care, and control of his or her children is “not absolute”).8

8 Moreover, unlike the Colorado legislature, which enacted new law to overturn the decision in Cooper a mere year after that decision was filed, see Colo. Rev. Stat. Ann. § 13-22-107 (eff. May 14, 2003), the Tennessee General Assembly has chosen to take no action to overturn the rule adopted in Childress for the last twenty-five years.

We are cognizant that the above statutes as well as the Wright decision concern only the parent’s ability to settle a claim after an injury has occurred. See Wright, 337 S.W.3d at 178. At least two courts have held that similar rules have no application to a pre-injury waiver. See Sharon, 769 N.E.2d at 747 n.10 (citing Mass. Gen. Laws Ann. ch. 231, § 140C1/2) (providing that a court may approve a settlement on behalf of a minor when approval is requested by a party); Zivich, 696 N.E.2d at 201. As the Sharon Court explained:

[T]he policy considerations underlying [a post-injury release] are distinct from those at issue in the preinjury context. A parent asked to sign a preinjury release has no financial motivation to comply and is not subject to the types of conflicts and financial pressures that may arise in the postinjury settlement context, when simultaneously coping with an injured child. Such pressure can create the [*64]  potential for parental action contrary to the child’s ultimate best interests. In short, in the preinjury context, there is little risk that a parent will mismanage or misappropriate his child’s property.

Sharon, 769 N.E.2d at 747 n.10 (citing Zivich, 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201). This Court previously rejected a similar argument in Childress, stating:

Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian. . . . Th[e] fact [that] the agreements at issue were executed pre-injury] does not change the rule, and indemnity provisions executed by the parent prior to a cause of action in favor of a child cannot be given effect. Were the rule otherwise, it would circumvent the rule regarding exculpatory clauses and the policy of affording protection in the law to the rights of those who are unable effectively to protect those rights themselves.

Childress, 777 S.W.2d at 7 (citing Valdimer, 172 N.E.2d at 285 (“Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.”)).

Nothing in Hawk or otherwise cited to this Court leads us to believe [*65]  that the decision in Childress on this particular issue was in error at the outset or has been changed by the fundamental parental rights doctrine. An agreement to waive all future claims arising out of an incident and to hold a third party harmless even from the third party’s negligence clearly has the potential to place the parent’s interest in conflict with the child’s interest. As the New Jersey Superior Court explained: “If such an agreement could be enforced it would be for the benefit of the [parent] to prevent the bringing of any suit on the claim of the infant no matter how advantageous such suit might be for the infant.” Fitzgerald, 267 A.2d at 559. The Oregon Supreme Court came to a similar conclusion:

As parent-guardian he owes a duty to act for the benefit of his child. That duty is not fully discharged where the parent enters into a bargain which gives rise to conflicting interests. The conflict may arise at the time of settlement when the parent has the opportunity to receive a sum of money in his own right as a part of the settlement in consideration for which he agrees to indemnity the defendant, and it may arise later when it is found advisable that his child bring action against the defendant [*66]  for injuries which had not been known at the settlement date. On either of these occasions there is a real danger that the child’s interest will be put in jeopardy because of the parent’s concern over his or her own economic interests. Certainly a parent who is called upon to decide whether his child should bring an action for injuries not known at the time of settlement is not likely to proceed with such an action in the face of knowledge that any recovery eventually will result in his own liability under an indemnity agreement.

Mallison, 354 P.2d at 802. The parent-child relationship has likewise been described as fiduciary by Tennessee courts in some situations. See Bayliss v. Williams, 46 Tenn. 440, 442 (1869) (“The relation may be of any kind which implies confidence, as trustee and beneficiary, attorney and client, parent and child, guardian and ward, physician and patient, nurse and invalid, confidential friend and adviser, indeed, any relation of confidence between persons which give one dominion or influence over the other[.]”); see also Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct. App. 1974) (noting that while the parent-child relationship may give rise to a fiduciary duty, that does not necessarily mean that the relationship is confidential for purposes of [*67]  undue influence or other legal questions). Accordingly, we agree with the courts in New Jersey, New York, and Oregon that  [HN19] the conflict requiring court approval of post-injury settlements involving minors is largely equal to the conflict created by a parent’s decision to sign a preinjury waiver on behalf of a minor.

Furthermore, in our view, a pre-injury waiver is largely analogous to a contract containing a contingency fee. In the context of a pre-injury waiver, the parent must weigh the benefit of the activity with potential injury that may occur, but the injury is merely hypothetical at that time. Likewise, when a parent signs a contingency fee agreement, the parent must weigh the benefits of the representation against the attorney’s fees that will be owed from the child’s recovery. At the time of the signing of the agreement, however, such recovery is merely hypothetical. Accordingly, similar interests and conflicts are inherent in both transactions.  [HN20] Because the Tennessee Supreme Court has held that contingency fee agreements signed by parents are invalid, despite the fact that no statute expressly prohibits such action, see Wright, 337 S.W.3d at 178, we likewise conclude that pre-injury waivers of [*68]  liability and indemnification agreements are unenforceable under Tennessee law.

Finally, we cannot discount the fact that Tennessee’s public policy may also be determined from our case law. See Baby, 447 S.W.3d at 823. As previously discussed, this Court determined in 1989 that contracts such as the one at issue in this case were unenforceable under Tennessee law. See Childress, 777 S.W.2d at 6. This Court has previously grappled with the question of whether our Opinions, published in the official reporter and denied permission to appeal by the Tennessee Supreme Court, are entitled to stare decisis effect. Compare Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 Tenn. App. LEXIS 625, 1996 WL 557844, at *2 (Tenn. Ct. App. Oct. 2, 1996), aff’d, 970 S.W.2d 431 (Tenn. 1998) (holding that where only one issue was decided by the Court of Appeals, the denial of permission to appeal by the Tennessee Supreme Court should be read as approval of the Court of Appeals’s holding until the Tennessee Supreme Court “change[s] its mind”); with Evans, 1996 Tenn. App. LEXIS 625, 1996 WL 557844, at *8 (Koch, J., dissenting) (citing Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987)) (“The doctrine of stare decisis does not apply with full force to principles that have not been directly adopted by the Tennessee Supreme Court.”); see also Hardy v. Tournament Players Club at Southwind, Inc., No. W2014-02286-COA-R9-CV, 2015 Tenn. App. LEXIS 524, 2015 WL 4042490, at *16 (Tenn. Ct. App. July 2, 2015) (Gibson, J., dissenting), perm. app. [*69]  granted (Tenn. Dec. 9, 2015) (noting the “the oddity of a Court of Appeals judge asserting that our own opinions may not have stare decisis effect[,]” in the context of an unpublished opinion of the Court of Appeals). If entitled to consideration under the stare decisis doctrine, we are “require[d] . . . to uphold our prior precedents to promote consistency in the law and to promote confidence in this Court’s decisions . . . [unless there is] an error in the precedent, when the precedent is obsolete, when adhering to the precedent would cause greater harm to the community than disregarding stare decisis, or when the prior precedent conflicts with a constitutional provision.” Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 639 (Tenn. 2013).

It appears that the issue was settled, however, by the Tennessee Supreme Court’s 1999 amendment to Rule 4 of the Rules of the Tennessee Supreme Court. See In re Amendment to Supreme Court Rule 4 (Tenn. Nov. 10, 1999), https://www.tncourts.gov/sites/default/files/sc_rule_4_amd_publ_opin.pdf (deleting the prior rule and adopting a new rule). Under Rule 4 of the Rules of the Tennessee Supreme Court, “[o]pinions reported in the official reporter . . . shall be considered controlling authority for all purposes unless and until such opinion is reversed or modified by a court of competent jurisdiction.” Accordingly, regardless of whether stare decisis applies in this case, it remains controlling authority in this case until overturned. As such, we will not [*70]  overrule the Childress decision lightly, especially given the over twenty-five years that it has operated as the law in Tennessee.

A similar issue was raised in Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1 (Mich. 2010). As previously discussed, the Michigan Supreme Court first recognized the well-settled rule that “a parent has no authority to waive, release, or compromise claims by or against a child[.]” Id. at 8. The Woodman Court therefore framed the issue as whether that well-settled rule should be altered due to changing policy considerations. The Michigan Supreme Court declined the invitation, holding that such a dramatic shift in public policy was best left to the state legislature:

There is no question that, if this Court were inclined to alter the common law, we would be creating public policy for this state. Just as “legislative amendment of the common law is not lightly presumed,” this Court does not lightly exercise its authority to change the common law. Indeed, this Court has acknowledged the prudential principle that we must “exercise caution and . . . defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law.”

Woodman, 785 N.W.2d at 9 (footnotes omitted) (quoting Wold Architects & Engineers v. Strat, 474 Mich. 223, 233, 713 N.W.2d 750 (Mich. 2006); Henry v. Dow Chem. Co., 473 Mich. 63, 89, 701 N.W.2d 684 (Mich. 2005)) (citing Bott v. Commission of Natural Resources, 415 Mich. 45, 327 N.W.2d 838 (Mich. 1982)).

The same is true in [*71]  this case. As previously discussed, the Childress Opinion was decided over twenty-five years ago. Since that time, both the Tennessee Supreme Court and the Tennessee General Assembly have had ample opportunity to affirmatively act to change the rule established in Childress. See Childress, 777 S.W.2d at 1 (noting that permission to appeal to the Tennessee Supreme Court was denied); Rogers v, 807 S.W.2d at 242 (same). Indeed, the Childress Opinion specifically invited both the Tennessee Supreme Court and the Tennessee General Assembly to scrutinize its holding. See Childress, 777 S.W.2d at 8. Despite this fact, the Childress rule has remained unaltered for more than two decades.

Other courts have questioned the danger presented to recreational activities participated in by minors in refusing to enforce liability waivers or exculpatory agreements. See, e.g., Sharon, 769 N.E.2d at 747 (holding that declining to enforce these waivers would “inevitably [be] destructive to school-sponsored programs”); Zivich, Inc., 696 N.E.2d at 205 (noting the threat that recreational activities will not be available to children without the enforcement of waivers). Indeed, even the Childress Court noted that possible threat posed by its ruling. See Childress, 777 S.W.2d at 7-8 (discussing whether its rule will have a chilling [*72]  effect on recreational activities for children). Given the twenty-five years under which Tennessee has been applying the rule adopted in Childress, however, we need not speculate as to the dire consequences that may result to children’s recreational opportunities. Indeed, Tennessee law is replete with instances of children participating in, and becoming injured by, recreational activities. See, e.g., Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 Tenn. App. LEXIS 607, 2015 WL 4537119, at *1 (Tenn. Ct. App. July 28, 2015) (involving a child injured in a woodworking shop operated by the Boys and Girls Club); Pruitt v. City of Memphis, No. W2005-02796-COA-R3-CV, 2007 Tenn. App. LEXIS 24, 2007 WL 120040, at *1 (Tenn. Ct. App. Jan. 18, 2007) (involving a child injured at a public swimming pool); Tompkins v. Annie’s Nannies, Inc., 59 S.W.3d 669 (Tenn. Ct. App. 2000) (involving a child injured in a downhill race organized by her day care center); Livingston, as Parent, Next Friend of Livingston v. Upper Cumberland Human Res. Agency, No. 01A01-9609-CV-00391, 1997 Tenn. App. LEXIS 163, 1997 WL 107059, at *1 (Tenn. Ct. App. Mar. 12, 1997) (involving a child injured at a church retreat); Cave v. Davey Crockett Stables, No. 03A01-9504CV00131, 1995 Tenn. App. LEXIS 560, 1995 WL 507760, at *1 (Tenn. Ct. App. Aug. 29, 1995) (involving a child injured at summer camp).9 In fact, Sky High has provided this Court with no evidence that recreational activities open to minors have in any way been hindered by the Childress rule. Accordingly, we can easily dismiss any claim that refusing to enforce waivers of liability against children will in any way limit the recreational opportunities open to children in Tennessee.

9 In Cave, the child’s parent signed “a consent [form] for the child to participate in the activity and . . . a release releasing [one of the defendants] from any liability for personal injuries received by the child.” 1995 Tenn. App. LEXIS 560, [WL] at *1. The Court never reached the issue, however, because of a statute that precluded liability for certain equine activities. Id. (citing Tenn. Code Ann. § 44-20-103).

Based [*73]  on the foregoing, we conclude that there is no basis to depart from this Court’s well-reasoned decision in Childress. Because the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements, the trial court did not err in refusing to enforce the waiver of liability and indemnity provisions of the release signed by Mother on behalf of Son.

IV.

Appellants next argue that the trial court erred in denying their request to amend their complaint to include a request for pre-majority medical expenses incurred on behalf of the child. Here, the trial court specifically found that “for a minor’s injuries[,] the claim for medical expenses [is] a separate and distinct claim of the parent[.]” According to the trial court, because Mother waived her right to recover from Sky High, Mother “could not effectively assign them or waive them to her son to allow him to pursue them.” The trial court therefore partially denied Appellants’ motion to amend their complaint.

As previously discussed,  [HN21] a trial court’s decision on a motion to amend a pleading is reviewed under an abuse of discretion standard. Fann v. City of Fairview, 905 S.W.2d 167, 175 (Tenn.Ct.App.1994). Rule 15.01 of the Tennessee Rules of Civil Procedure provides that leave of court [*74]  to amend pleadings “shall be freely given when justice so requires.” The Tennessee Supreme Court has recognized that the language of Rule 15.01 “substantially lessens the exercise of pre-trial discretion on the part of a trial judge.” Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975); see also Hardcastle v. Harris, 170 S.W.3d 67, 80-81 (Tenn. Ct. App. 2004). In considering a motion to amend, a trial court is to consider several factors, including: “undue delay in filing the amendment, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and the futility of the amendment.” Gardiner v. Word, 731 S.W.2d 889, 891-92 (Tenn. 1987).

Although not termed as such by the trial court, it appears to this Court that the trial court denied Appellants’ motion to alter or amend on the basis of futility–that is, because Son could not recover pre-majority medical expenses even if requested in the complaint, the amendment served no purpose.10 Sky High argues that the trial court was correct in its decision, citing the Tennessee Supreme Court’s decision in Dudley v. Phillips, 218 Tenn. 648, 651, 405 S.W.2d 468 (Tenn. 1966).  [HN22] In Dudley, the Tennessee Supreme Court held that when a child is injured, two “separate and distinct causes of action” are created: (1) a cause of action on behalf of the parent for “loss [*75]  of services [and] medical expenses to which [the parent] will be put”; and (2) “another and distinct cause of action arises in favor of the child for the elements of damage to him, such as pain and suffering, disfigurement, etc.” Id. at 469 (quoting 42 A.L.R. 717 (originally published in 1926)). The rule expressed in Dudley has been reaffirmed by Tennessee courts on multiple occasions. See Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 549 (Tenn. Ct. App. 2015); Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 Tenn. App. LEXIS 607, 2015 WL 4537119, at *5 (Tenn. Ct. App. July 28, 2015); Luther, Anderson, Cleary & Ruth, P.C. v. State Farm Mut. Auto. Ins. Co., No. 03A01-9601-CV-00015, 1996 Tenn. App. LEXIS 244, 1996 WL 198233, at *3 (Tenn. Ct. App. Apr. 25, 1996); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 247 (Tenn. Ct. App. 1990)). Indeed, the rule has been codified into Tennessee’s statutory law at Tennessee Code Annotated section 20-1-105, which provides, in relevant part: “The father and mother of a minor child have equal rights to maintain an action for the expenses and the actual loss of service resulting from an injury to a minor child in the parents’ service or living in the family . . . .” Tenn. Code Ann. § 20-1-105(a).

10 We note that this Court has previously held:

The court . . . should not deny a plaintiff’s Tenn. R. Civ. P. 15 Motion to Amend based on an examination of whether it states a claim on which relief can be granted. As the United States Supreme Court explained, “[i]f underlying facts or circumstances relied on by plaintiff may be proper subject of relief, he ought to be afforded opportunity to test his claim on merits and therefore should be permitted to amend [*76]  complaint.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). If the legal sufficiency of the proposed Complaint is at issue–instead of delay, prejudice, bad faith or futility–the better protocol is to grant the motion to amend the pleading, which will afford the adversary the opportunity to test the legal sufficiency of the amended pleading by way of a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss. See McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991).

Conley v. Life Care Centers of Am., Inc., 236 S.W.3d 713, 724 (Tenn. Ct. App. 2007). Here, it does appear that the trial court judged the merits of Son’s claim for pre-majority expenses in denying Appellants’ motion to alter or amend. If we were to remand to the trial court with directions to grant the amendment, it is likely that the trial court would later grant a motion to dismiss this claim on the same basis that it denied the motion to amend. Consequently, we cannot discern how judicial economy would be furthered by requiring the above procedure. Furthermore, this Court in its order granting the interlocutory appeal specifically indicated that the question of “whether the minor child can recover medical expenses on his own behalf” was “appropriate” for interlocutory review. Accordingly, we proceed to consider the merits of this issue.

Sky High argues that because Mother’s claims were extinguished by her valid and undisputed execution of the waiver and indemnification language in the release, any claim for pre-majority medical expenses is likewise barred. Appellants agree that Mother has waived “her individual right to recover medical expenses incurred by her son.” Indeed, all of Mother’s individual claims were voluntarily dismissed in the trial court. Appellants also do not dispute the general rule that  [HN23] children may not claim pre-majority medical expenses as a measure of damages in the child’s lawsuit because those damages are owed solely to the parents. See Dudley, 405 S.W.2d at 469; see also Burke v. Ellis, 105 Tenn. 702, 58 S.W. 855, 857 (Tenn. 1900) (“It is not alleged or shown that the boy incurred any expense for medical services. It is alleged these were incurred by the father. Such an element was not proper in estimating the [*77]  damages in a case brought like this, by next friend, for the minor[.]”). Instead, Appellants argue that because Mother waived her claims by signing the release, the child is permitted to claim the medical expenses on his own behalf, with Mother acting in her capacity as next friend.

In support of their argument, Appellants cite the Tennessee Supreme Court’s decision in Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631 (Tenn. 1941). In Wolfe, the minor was injured in an automobile accident. Because her mother was deceased and her father incompetent, the minor filed suit with her grand uncle acting as next friend. Id. at 633. The jury eventually awarded the minor plaintiff damages, including pre-majority medical expenses. Id. at 632. On appeal, the defendants argued that the minor could not recover those expenses “the insistence being that the law confers no cause of action upon an infant for such expenses.” Id. at 633. The Tennessee Supreme Court agreed with the defendant’s contention generally, noting:

 [HN24] “Since the parent is entitled to the services and earnings of the child so long as the latter is legally under his custody or control, ordinarily an infant suing for personal injuries cannot recover for the impairment of his earning capacity during infancy, or for loss of time, [*78]  or for expenses in curing his injuries, when, and only when, he is under the control of his parents; after emancipation he may do so. However, he may recover for his mental or physical pain and sufferings, his permanent injuries, and for the impairment of his power to earn money after arriving at majority.”

Id. at 634 (quoting 31 C. J. 1114, 1115). The Wolfe Court held, however, that an exception to the rule should be present “where a child has no parent who can sue for such expenses that she can sue for and recover the same.” Wolfe, 152 S.W.2d at 634. Accordingly, the Tennessee Supreme Court adopted the following rule:

 [HN25] “A parent may waive or be estopped to assert his right to recover for loss of services, etc., by reason of injury to his minor child, and permit the child to recover the full amount to which both would be entitled, as where the parent as next friend brings an action on behalf of the child for the entire injury, or permits the case to proceed on the theory of the child’s right to recover for loss of services and earning capacity during minority. In such case the parent treats the child as emancipated in so far as recovery for such damages is concerned, and cannot thereafter be permitted to claim that he, [*79]  and not the child, was entitled to recover therefor.”

Id. at 633-34 (quoting 46 C. J. 1301, 1302).

This Court has considered the rule set down in Wolfe on a number of occasions. See Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 Tenn. App. LEXIS 607, 2015 WL 4537119, at *8 (Tenn. Ct. App. July 28, 2015); Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006); Smith v. King, No. CIV.A. 958, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 (Tenn. Ct. App. Sept. 21, 1984). In Smith, the child, with his parent acting in the capacity of next friend, filed suit to recover for her injuries incurred when she was struck by a car. Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *1. Because the parent’s claim was barred by the applicable statute of limitations, the child sought to recover not only the damages owed to him, but also for pre-majority medical expenses. Id. In Smith, we held that based upon a theory of waiver, as set down in Wolfe, “under circumstances where the parent has acted as next friend,” the child “may maintain an action for his medical expenses provided that he has paid them, as suggested in Burke, or is legally obligated to pay them.” Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *2 (citing Burke, 58 S.W. at 857 (holding that it was error for the trial court to allow evidence of pre-majority medical expenses that were paid by the child’s parent)). The Smith court therefore remanded to determine “whether the child could bring herself within the exception to the general rule[.]” Id. The Smith Court, however, was not abundantly [*80]  clear as to who was actually required to have paid the expenses, the child or the parent, in order for the child to recover those damages in his or her suit.

The question was answered by this Court in Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006), no perm. app. filed. Like the child in Smith, the child in Palanki filed suit through his next friend. Although the parents’ claim was not barred by the statute of limitations, the child in Palanki nevertheless requested medical expenses incurred while he was a minor. Id. at 384. This Court held that the child “could properly maintain his own action for pre-majority medical expenses incurred or likely to be incurred by [the child’s mother] on his behalf[.]” Id. at 394. In reaching this result, this Court in Palanki characterized the rule “adopted” in Smith as allowing “a child under circumstances where the parent has acted as next friend [to] maintain an action for his medical expenses provided that [the parent] has paid for them . . . or is legally obligated to pay them.” Id. (alteration in original) (quoting Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *2).11 This Court therefore held that evidence regarding the child’s pre-majority medical expenses was properly admitted and considered by the jury. Id. at 394.

11 The Palanki Court inexplicably states that this rule was adopted in Smith with no citation of any kind to the Tennessee Supreme Court’s seminal decision in Wolfe, upon which the Smith Court bases its analysis.

Recently, the United States District [*81]  Court for the Eastern District of Tennessee called into question the holding in Palanki. See Grant v. Kia Motors Corp., No. 4:14-CV-79, 2016 Tenn. LEXIS 816, 2016 WL 6247319 (E.D. Tenn. May 10, 2016).12 In Grant, the minor children were injured in an automobile accident, and the children’s mother filed suit in her capacity as next friend. 2016 Tenn. LEXIS 816, [WL] at *1. The district court, relying on Dudley, first ruled that any claims brought by the mother individually were not tolled due to the children’s minority. 2016 Tenn. LEXIS 816, [WL] at *8 (citing Tenn. Code Ann. § 29-28-103(a)) (containing an express tolling provision applicable to minors). Because the mother filed her action after the expiration of the statute of repose, her claims were barred. Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *9.

12 Although federal interpretations of Tennessee law are not controlling on this Court, we may consider their analysis helpful in appropriate circumstances. See State v. Hunt, 302 S.W.3d 859, 863-64 (Tenn. Crim. App. 2009) (“[A] federal court’s interpretation of Tennessee law is not binding on the courts of this state.”).

The mother argued, however, that given that her individual claims were barred, her children were able to pursue pre-majority medical expenses under the theory of waiver espoused in Palanki. Id. The district court noted that under the interpretation of the waiver rule adopted in Palanki, Tennessee’s intermediate courts “would likely permit the minor Plaintiffs in this action to bring claims for their pre-majority medical expenses through their mother . . . as next friend.” Id. Under well-settled rules regarding federal courts sitting in diversity, the Grant court noted [*82]  that it “must follow state law as announced by the Supreme Court of Tennessee[,]” and “[w]here, as here, ‘a state appellate court has resolved an issue to which the high court has not spoken, we will normally treat [those] decisions . . . as authoritative absent a strong showing that the state’s highest court would decide the issue differently.'” Id. (quoting Kirk v. Hanes Corp. of North Carolina, 16 F.3d 705, 707 (6th Cir. 1994) (emphasis in original)). Based upon its reading of Wolfe and Smith, however, the district court stated that it was “convinced that the Supreme Court of Tennessee would not apply the waiver rule as announced in Palanki to the case at bar.” Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *9. Specifically, the Grant court concluded that the Palanki Court wrongly interpreted the ambiguous language in Smith to allow a child to sue for expenses paid by the child’s parent when the opposite rule was intended by the Smith Court. 2016 Tenn. LEXIS 816, [WL] at *10 (citing Palanki, 215 S.W.3d at 394 (citing Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *2)).

In reaching this conclusion, the district court first referenced the Tennessee Supreme Court’s ruling in Wolfe, noting that “the Wolfe court clearly addressed a situation in which the parents neither paid for nor were legally responsible for the child’s medical expenses.” Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *10. The court in Grant likewise concluded that the Court of Appeals in Smith was concerned [*83]  only with those expenses paid by the minor himself. 2016 Tenn. LEXIS 816, [WL] at 11. In support, the district court noted that the proviso in the Smith Court’s holding that a claim for pre-majority medical expenses may stand “provided he has paid them,” cites the Tennessee Supreme Court’s decision in Burke v. Ellis. Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11 (citing Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2 (citing Burke, 58 S.W. at 857)). In Burke, the Tennessee Supreme Court ruled that the trial court erred in allowing evidence of pre-majority medical expenses in a case brought by the minor through his next friend. Burke, 58 S.W. at 857. Indeed, the Burke Court mentioned that there was no proof that the child was required to pay his own medical expenses. Id. (“[W]hile there is no proof that the child paid any expenses for medical treatment, there is a statement that such expenses were incurred and paid by the father[.]”). As such, the Grant court concluded that:

 [HN26] Burke unmistakably stands for the proposition that it is improper for a jury to consider medical expenses as relevant to damages where, as here, a minor brings claims by next friend. Moreover, by explicitly mentioning twice that there is no proof that the child paid any expenses for medical treatment, the court implies that the outcome may be different if such proof were presented. Accordingly, where [*84]  the Smith court says that the waiver rule applies to permit a child to recover medical expenses “provided that he has paid them, as suggested in Burke,” Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2, it is clear that the “he” to which the Smith court referred was intended to be “the child.”

Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11.

The Grant court also noted other portions of the ruling in Smith that supported its interpretation. For example, the Smith court cited two cases regarding the question of when a child is liable for necessaries furnished to him. Id. (citing Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2 (citing Gardner v. Flowers, 529 S.W.2d 708 (Tenn. 1975); Foster v. Adcock, 161 Tenn. 217, 30 S.W.2d 239 (Tenn. 1930)). In both of these cases, however, the dispute involved whether a child, not the child’s parent, was liable on a debt. See Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11 (citing Gardner, 529 S.W.2d at 711; Foster, 30 S.W.2d at 240). Additionally, the Grant court noted that the remand order in Smith indicates that the only pre-majority medical expenses that may be raised by the child are those that were paid by him or her. See Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *12 (“It is clear . . . that the court remanded the case so that the minor plaintiff could present evidence that she, the child, had paid the medical expenses or was legally obligated to pay same.”). Indeed, the Smith Court remanded to the trial court to determine “whether the child could bring herself within the exception to the general rule[,]” despite the [*85]  fact that the record contained evidence that the father was billed for the child’s medical expenses. Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2. Were the rule in Smith that the child could bring a claim for pre-majority medical expenses paid by him or his parent, a remand would not have been necessary to ascertain whether the child could “bring herself within the [waiver] rule.” See id.

Finally, the Grant court noted two other considerations that required it to depart from this Court’s holding in Palanki: (1) the purpose of the waiver rule was allow a claim where there was no threat of double recovery; and (2) accepting the Palanki interpretation of the waiver rule would “allow a parent to collect as damages his/her child’s pre-majority medical expenses notwithstanding the fact that the parent’s individual claims are barred.” Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *12. The Grant court concluded that such a result was untenable because it blurred the demarcation between the parent’s claims and the child’s claims and permitted the parent to evade the fact that his or her own claim was barred. Id.

Although it is certainly unusual for this Court to depart from the most recent reported Tennessee case on this subject in favor of an interpretation offered by a federal district [*86]  court, we must agree with the Court in Grant that the child in this case should not be able to claim pre-majority expenses paid by his parents in an effort to circumvent Mother’s execution of the release, including its waiver and indemnity provision. First, we note that although the Palanki decision is reported in the official reporter and therefore “controlling for all purposes,” Tenn. R. Sup. Ct. 4(G)(2), Palanki was published pursuant to Rule 11 of the Rules of the Tennessee Court of Appeals, where no application for permission to appeal to the Tennessee Supreme Court was filed. See Palanki, 215 S.W.3d at 380; see also Tenn. R. Ct. App. 11. As previously discussed, there is some question as to whether opinions of the Tennessee Court of Appeals which have been denied permission to appeal by the Tennessee Supreme Court are entitled to stare decisis effect. See generally Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 Tenn. App. LEXIS 625, 1996 WL 557844, at *2, *8 (Tenn. Ct. App. Oct. 2, 1996). But see Tenn. R. Sup. Ct 4(G)(2). Regardless, the Tennessee Supreme Court has specifically held that:R3-CV, 2009 Tenn. App. LEXIS 874, 2009 WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v. Davis, No. M2003-02312-COA-R3-CV, 2004 Tenn. App. LEXIS 664, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 12, 2004) (“Once the Tennessee Supreme Court has addressed an issue, its decision regarding that issue is binding on the lower courts.”)); Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997) (quoting State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) (“[I]t is a controlling principle that inferior courts [*87]  must abide the orders, decrees and precedents of higher courts. The slightest deviation from this rigid rule would disrupt and destroy the sanctity of the judicial process.”)); Levitan v. Banniza, 34 Tenn. App. 176, 185, 236 S.W.2d 90, 95 (Tenn. Ct. App. 1950) (“This court is bound by the decisions of the Supreme Court.”). Accordingly, to the extent that the decision in Palanki conflicts with either Wolfe or Burke, we are required to disregard it.

 [HN27] [W]hen no application for review of an opinion of the intermediate courts is sought, it has no stare decisis effect, and such an opinion cannot serve to modify or change existing law. The doctrine of sta[r]e decisis, especially as respects rules of property, does not apply with full force until the question has been determined by a court of last resort.

Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987). As such, the decision in Palanki simply cannot serve to alter or change the decisions by the Tennessee Supreme Court in Wolfe and Burke. See also Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 789 (Tenn. 1968) (citing City of Memphis v. Overton, 54 Tenn. App., 419, 392 S.W.2d 86 (Tenn.1964) (“The Court of Appeals has no authority to overrule or modify [the Tennessee] Supreme Court’s opinions.”)). Morris v. Grusin, No. W2009-00033-COA-R3-CV, 2009 Tenn. App. LEXIS 874

Furthermore, we agree with the Grant court’s comment that in both Smith and Wolfe, the Court was concerned with the situation wherein the child himself paid the medical [*88]  expenses. See Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11-12 (citing Wolfe, 152 S.W.2d at 634; Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2). Indeed, in Wolfe, the child’s parents were not at all involved in her life. Wolfe, 152 S.W.2d at 634. Accordingly to deprive her of the pre-majority medical expenses which she herself paid simply due to a legal fiction that all parents must pay for the pre-majority medical expenses of their children would have been fundamentally unfair. The Smith Court, likewise, indicated that the child, rather than the parent, must have paid the medical expenses and specifically cited the Tennessee Supreme Court’s decision in Burke in announcing its rule. Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2. Again, Burke unequivocally held that the child could not present proof of pre-majority medical expenses paid by his parent. Burke, 58 S.W. at 857.

Interpreting the Wolfe waiver rule in this fashion best comports with Tennessee law. First, allowing the minor child to recover those expenses he himself has paid harmonizes with Tennessee’s public policy of protecting the financial interests of minors. See discussion, supra. To hold otherwise would prevent the child from being fully compensated for the damages that he actually incurred based upon an arbitrary determination that those expenses were paid by the child’s parent, even in the face of proof to the contrary. [*89]  Furthermore, to allow the child in this case to claim Mother’s damages despite the fact that she executed a valid release and indemnity agreement would be to frustrate this state’s public policy of enforcing clear and unambiguous exculpatory agreements entered into freely by adults. See Moss v. Fortune, 207 Tenn. 426, 429, 340 S.W.2d 902, 903-04 (Tenn. 1960). Indeed, the Smith Court specifically confined the rule to only those claims that the parent “might have[.]” Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2. In this case, however, Mother’s claims have been extinguished by her execution of the release. Accordingly, she has no claim that she may waive in favor of the child.

A recent Tennessee Supreme Court case supports our analysis. In Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005), as amended on reh’g in part (Feb. 21, 2006), the child’s mother filed a medical malpractice action in federal district court as next friend of her minor child. Id. at 512. There was no dispute that the mother’s claims were barred by the applicable statute of repose. The dispute in the case concerned whether the child’s claim was likewise barred by the statute of repose or whether the statutory time limit was tolled during the child’s minority. Id. Because the dispute involved Tennessee law, the Tennessee Supreme Court accepted four certified questions from [*90]  the federal court. Id. The Tennessee Supreme Court ultimately concluded that the medical malpractice statute of repose was not tolled by a child’s minority but held that the rule would only be applied prospectively. Id. at 517-18. The Calaway Court thereafter answered the following certified question:

Question 1: Does a minor child have a personal claim for medical expenses arising from an injury caused by the fault of another when the claim of the child’s parent for such medical expenses is barred by a statute of limitation or repose?

Answer: No.

Id. at 519. We acknowledge that this rule is offered with no elaboration and only expressly addresses the situation wherein a parent’s claim is barred by a statute of limitation or repose. Id. Regardless, we find it highly persuasive that  [HN28] the Tennessee Supreme Court does not intend to allow a child to raise claims belonging to his parent simply because the parent cannot maintain his or her action, either because of the expiration of a statute of limitation or repose or the waiver of that claim through an exculpatory agreement.

Based on the foregoing, we conclude that Son cannot maintain an action for pre-majority medical expenses that were paid or will be paid by his [*91]  parents. Rather, under the rule in Wolfe and Smith, Son may only maintain an action for those medical expenses that he paid or is obligated to pay. Here, the motion to amend Appellants’ complaint does not conclusively illustrate whether the requested damages constitute medical expenses paid by Son’s parents or medical expenses paid by Son. Like the Smith Court, we are reluctant to hinder Son’s ability to fully recover for his injuries. Accordingly, we reverse the trial court’s ruling denying the motion to amend the complaint only so as to allow Appellants to raise a claim for those pre-majority medical expenses paid by Son or for which Son is obligated to pay. With regard to any pre-majority medical expenses paid by Son’s parents, we affirm the trial court’s order denying the motion to amend the complaint.

Conclusion

The judgment of the Davidson County Circuit Court is reversed as to the motion to amend the complaint only to the extent of allowing Son to raise a claim for those pre-majority medical expenses paid by Son or for which Son is obligated to pay. The judgment of the trial court is affirmed in all other respects. Costs of this appeal are taxed one-half to Appellants Crystal [*92]  Blackwell as next friend to Jacob Blackwell, and their surety, and one-half to Appellee Sky High Sports Nashville Operations, LLC, for all of which execution may issue if necessary.

J. STEVEN STAFFORD, JUDGE

 


Virgin Islands court upholds release to stop claims by a minor against a program providing benefits for youth

The courts’ analysis concludes if a parent has the right to sue for a minor, because of injuries the minor receives, the parent has the right to sign a release for a minor and give up that right to sue.

Walker vs. Virgin Islands Waste Management Authority, Government of the Virgin Islands, 2015 V.I. LEXIS 8; 62 V.I. 109

State: Virgin Islands, Superior Court of the Virgin Islands, Division of St. Croix

Plaintiff: Brandon Walker

Defendant: Virgin Islands Waste Management Authority, Government of the Virgin Islands, Department of Human Services, Latrell Jacobs and Kareem Casimir, Defendants

Plaintiff Claims:

Defendant Defenses:

Holding: For the Defendant

Year: 2015

The actual facts of the case are not in the opinion, including what the defendant’s program was or the benefits it provided as well as the injury suffered by the minor. It is also unclear if the defendant is a non-profit. However, reviewing the defendant’s website it is clear it is a for-profit business in conjunction or partnership with the government is running a program to employee youth during the summer.

The program was called the YES program. The program hires youth and counselors for the summer to provide employment for them. The program is tax payor funded.

The plaintiff was a minor who entered into a program offered by the defendant. For the plaintiff to participate in the program, the plaintiff’s mother had to sign a release. While in the program, the minor suffered an injury, and the plaintiff, through his mother, sued. The defendant filed a motion for summary judgement, which was granted based on the release signed by the mother.

This appeal followed.

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

The court first looked at the release to determine if it was valid and supported by Virgin Island law. A release pursuant to the Virgin Islands must first be clear and unequivocal (meaning not ambiguous).

First, the Court examines the language of the Release Agreement pursuant to basic contract law to determine if it is “clear and unequivocal.” A contract is ambiguous “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.”

Virgin Island law does not allow a release to shield a defendant against gross negligence claims. This was specifically set forth in the release.

The Release Agreement is less than one page long and contains the following relevant language: “In consideration for being permitted to participate in the Youth Environmental Summer Program (YES) the undersigned hereby releases and holds harmless the Virgin Islands Waste Management authority … as well as their employees, agents … FROM ANY AND ALL CLAIMS, DAMAGES (INCLUDING PERSONAL INJURY, PROPERTY OR CONSEQUENTIAL DAMAGES), LIABILITY AND/OR CAUSES OF ACTION, whether resulting from negligence,….

In Booth v. Bowen, the District Court upheld the traditional standard that any portion of a release barring claims of gross negligence is unenforceable, but did not address acts of ordinary negligence.

After reviewing the language of the release the court found it was a valid release under Virgin Island law.

On the basis of the record, the Court finds that the Release Agreement contains broad and unambiguous language that specifically, clearly and unequivocally releases VIWMA from any liability for claims resulting from negligence related to its Youth Environmental Summer Program.

The court then looked at the public policy considerations to determine if a parent or as identified in this case, custodial parent could sign away a minor’s right to sue. Because there was no prior decision concerning this issue in the Virgin Islands, the court undertook a “Banks analysis” to determine the correct common law to apply. This analysis was also used to support the court’s creation of common law. The analysis considered the following issues.

The Court considers three factors in deciding what common law rule to adopt as the applicable standard for an issue in dispute: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.”

The court then looked at other releases in the Virgin Islands. The release the court found was an admiralty case which had a two-part test to determine if the release was valid and enforceable.

In an admiralty personal injury claim, the District Court upheld the rule that “to be valid, the release must: (1) clearly and unequivocally indicate the intentions of the parties, and (2) not be inflicted by a monopoly, or a party with excessive bargaining power.”

The court then looked at how other jurisdictions had ruled on releases. The court reviewed cases in New Jersey, Ohio, Florida and Michigan to determine how and why those courts had ruled the way those courts ruled. (See States that allow a parent to sign away a minor’s right to sue.)

The court found in its review that courts upheld releases when a non-profit institution was the defendant.

A survey of how other jurisdictions approach the public policy considerations involving a parental guardian’s waiver of her minor child’s future right to bring an action for ordinary negligence suggests that a majority of courts uphold such waivers in the limited circumstance when a waiver protects a non-profit institution from lawsuits based on ordinary negligence.

After making this determination the court then had to apply the law in the way best for the Virgin Islands.

Finally, and most importantly, this Court must examine which approach represents the soundest rule for the Virgin Islands. In this regard, the public policy considerations of the noted jurisdictions are persuasive. The Court notes that there are limited opportunities in the Virgin Islands for elementary and secondary school children to participate in summer and afterschool activities. Many parents do not have the financial resources to take advantage of programs and activities requiring payment of fees or tuition of participants.

If the program were to fail, the burden of employing youth for the summer would shift back to the state.

Because the risk of exposure to liability carries with it the real possibility that VIWMA may be unable or unwilling to provide YES Program tuition-free to its participants, the Court finds that the public interest is best served by upholding the Release Agreement according to its terms.

The court then analyzed the relationship of the parent to the child, from a legal perspective, and made a statement I’ve never seen in a decision before. However, the decision is brilliant in its simplicity and argument that a parent can sign away a minor’s right to sue.

Custodial parents may, as did Alesia Jerrels in this case, lawfully prosecute personal injury claims on behalf of their minor children who have been harmed by the tortious act of third parties, as part of their obligation to provide support. The same provisions that allow a custodial parent to sue on behalf of a minor child conversely permit the parent to enter into a contractual agreement on behalf of the child to agree to forgo the right to sue in exchange for the right to participate in a not-for-profit educational program.

If the parent has the right to sue on behalf of a child, then the parent should have the right to sign away a child’s right to sue.

The court then concluded its analysis with a review of how it found the release was valid.

The release from liability provided in this case in exchange for the right to participate in the YES Program sufficiently protected Plaintiff’s interests from overreaching on the part of VIWMA. To be effective, the Release Agreement must be clear and unambiguous. It may only shield VIWMA from ordinary negligence, but not from gross negligence or the reckless conduct of VIWMA, its agents or employees. The Release Agreement in favor of VIWMA is upheld only because and to the extent that VIWMA acts as a non-profit providing a program of benefit to the community.

Then the court made the same analysis of the value of upholding the release signed by a parent under the laws of the Virgin Islands. Meaning the first analysis was the overall validity of the release, and the second was to the specific issue of the parent signing away the minor’s right to sue.

In balancing the benefits and potential detriments to upholding the Release Agreement, the Court concludes that the soundest rule for the Virgin Islands, and the common law rule it adopts follows the majority of other jurisdictions to uphold the Release Agreement signed by Plaintiff’s custodial parental guardian during his minority, which waives his claims for ordinary negligence against VIWMA, operating as a not-for-profit organization providing a service benefiting the community of the Virgin Islands.

The court upheld the release and dismissed the claims relating to negligence of the plaintiff.

So Now What?

Here is a decision upholding the right of a parent to sue and to release a possible lawsuit from a US territory. The analysis was very different from how courts in other states would have written their decision, but the results were the same.

If, as a parent, you can sue on behalf of your child, then as a parent, you can give up that right to sue on behalf of your child and your child’s right to sue.

What do you think? Leave a comment.

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Walker vs. Virgin Islands Waste Management Authority, Government of the Virgin Islands, 2015 V.I. LEXIS 8; 62 V.I. 109

Walker vs. Virgin Islands Waste Management Authority, Government of the Virgin Islands, 2015 V.I. LEXIS 8; 62 V.I. 109

Brandon Walker, Plaintiff vs. Virgin Islands Waste Management Authority, Government of the Virgin Islands, Department of Human Services, Latrell Jacobs and Kareem Casimir, Defendants

Civil No. SX-11-CV-353

Superior Court of the Virgin Islands, Division of St. Croix

2015 V.I. LEXIS 8; 62 V.I. 109

January 26, 2015, Decided

PRIOR HISTORY: Walker v. V.I. Waste Mgmt. Auth., 2014 V.I. LEXIS 58 (V.I. Super. Ct., Aug. 7, 2014)

JUDGES: [*1] BRADY, Judge

OPINION BY: DOUGLAS A. BRADY

OPINION

MEMORANDUM OPINION

(January 26, 2015)

THIS MATTER is before the Court on Defendant Virgin Islands Waste Management Authority’s (“VIWMA”) Supplemental Brief in Support of Motion for Summary Judgment on Count II (“Motion Supplement”), filed August 29, 2014. Plaintiff has not filed a response to VIWMA’s [**111] Supplemental Brief. For the reasons that follow, Defendant VIWMA’s Motion will be granted.

BACKGROUND

The history of this case was thoroughly reviewed in this Court’s August 7, 2014 Memorandum Opinion and Order (“Order”), granting VIWMA partial summary judgment on Count I of Plaintiff’s Second Amended Complaint — Assault and Battery. With respect to Count II, the Court held that

Genuine issues of material fact remain unresolved and prevent entry of judgment as a matter of law against VIWMA as to Count II — Negligent Hiring, Retention, Training and Supervision. The employment status of Casimir and Jacobs with VIWMA at the time of the incident, giving rise to a different standard of care for VIWMA, is a matter to be determined by a jury. Further, Defendant VIWMA’s reasonableness in hiring Casimir [*2] and Jacobs, and in supervising activities of the YES Program participants are unresolved questions of material fact to be determined by the trial jury.

Order, at 13.

The Court found that neither party had adequately addressed the “issue of the effect, if any, of the Release Agreement upon the rights and obligations of the parties …” and declined to rule on the issue, while ordering further briefing. Id. at 14.1

1 Plaintiff’s mother, Alesia Jerrels, executed a Release, Hold Harmless and Indemnity Agreement (“Release Agreement”), dated June 28, 2010, wherein on behalf of her then-minor son she “releases and holds harmless” VIWMA and related parties “FROM ANY AND ALL CLAIMS, DAMAGES (INCLUDING PERSONAL INJURY, PROPERTY OR CONSEQUENTIAL DAMAGES), LIABILITY AND/OR CAUSES OF ACTION, whether resulting from negligence, breach of warranty, strict liability or otherwise arising out of or in any way related to the Youth Environmental Summer Program.

“I understand that it is the intention of this Agreement that neither I nor my child will file a claim or law suit against VIWMA … except if the VIWMA is grossly negligent which negligence caused me or my child injury.” VIWMA Motion and Brief Requesting Summary [*3] Judgment on Plaintiff’s Second Amended Complaint (“Original Motion”), Exhibit 6, emphasis in original.

Defendant VIWMA complied with the Order and submitted its Supplemental Brief on August 29, 2014. Plaintiff declined the Order’s invitation to respond to VIWMA’s supplemental briefing on the issues in [**112] dispute and the Court accepts Plaintiff’s silence despite the passing of more than four months as his indication that he relies upon the record and his arguments previously presented.

At issue is whether the June 28, 2010 Release Agreement, executed by Plaintiff’s mother before the incident while Plaintiff was still a minor, shields VIWMA from liability on Count II — Negligent Hiring, Retention, Training and Supervision, notwithstanding the existence of disputed facts relating to VIWMA’s hiring, training and supervision of individual Defendants Jacobs and Casimir who allegedly assaulted Plaintiff, giving rise to his claims.

DISCUSSION

[HN1] A moving party will prevail on a motion for summary judgment where the record shows that there is no unresolved genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), applicable pursuant to Super. Ct. R. 7; Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The reviewing court must [*4] determine whether there exists a dispute as to a material fact, the determination of which will affect the outcome of the action under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Such a dispute is genuine if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. Id. In analyzing the evidence, the court must consider the pleadings and full factual record, drawing all justifiable inferences in favor of the nonmoving party, to determine whether the movant has met its burden of showing that there is no unresolved genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

[HN2] A party opposing a motion for summary judgment may not rest upon the allegations or denials within its pleadings, but must set forth specific facts showing that there is a genuine issue for trial, such that the jury or judge as fact finder could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. The nonmoving party asserting that a fact is genuinely disputed must support the assertion by “citing to particular parts of materials in the record …” Fed. R. Civ. P. 56(c)(1)(A). See also Williams v. United Corp., 50 V.I. 191, 194 (V.I. 2008), citing Rule 56(e) prior to its 2010 amendment. “As to materiality, only those facts that ‘might affect the outcome of the suit under the [**113] governing law will properly preclude the entry [*5] of summary judgment.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).

Defendant VIWMA is entitled to judgment as a matter of law on Count II of Plaintiff’s Second Amended Complaint — Negligent Hiring, Retention, Training and Supervision.

a. There are no genuine issues of material fact in dispute.

The parties have presented no allegations that there remain unresolved issues of material fact regarding the circumstances surrounding the execution of the Release Agreement, or its substance. VIWMA has not addressed the factual circumstances that resulted in the execution of the Release Agreement by Plaintiff’s mother, Alesia Jerrels. In executing the Release Agreement, however, Ms. Jerrels confirmed: “I agree to the terms of this agreement as a condition precedent to permit me and/or my child to participate in the YES Summer Program.” Original Motion, Exhibit 6.

Plaintiff has never challenged the substance or terms of the Release Agreement, or the circumstances giving rise to its execution.2 Plaintiff does not contest that Alesia Jerrels signed the Release Agreement on his behalf when he was a minor and, as his mother, she was acting as his custodial parent.

2 Plaintiff’s only reference to the Release Agreement is set out in [*6] his original response to VIWMA’s Original Motion, wherein he stated that “We disagree” with VIWMA’s assertion that the Release Agreement “precludes liability,” apparently on the basis that “[o]nly persons who have attained the age of majority can execute a binding contract” and that “any document signed by Plaintiff while under the age of eighteen is none binging [sic] upon him.” Plaintiff’s Response to VIWMA’s Original Motion, at 5. As noted in the Order, “Plaintiff ignores the fact that he, as an unemancipated minor, did not sign the Release Agreement, but that his mother, as his custodial parent obligated for his support (16 V.I. Code § 342(a)(2)), executed the Release Agreement on his behalf.” Order, at 13.

Accordingly, the Court will examine whether the Release Agreement, by operation of law, prevents Plaintiff from suing VIWMA, effectively shielding Defendant VIWMA, even in the event of its own negligence (but not in the event of its gross negligence).

b. As a matter of law, the Release Agreement shields Defendant VIWMA from liability for negligence.

Defendant VIWMA cites Joseph v. Church of God (Holiness) Academy, 47 V.I. 419 (Super. Ct. 2006) in which then Presiding Judge [**114] Cabret denied two defendants’ motion for summary judgment based upon a properly executed release, finding [*7] the “exculpatory contract clause … to be ambiguous, or susceptible to at least two different interpretations.” Id. at 427. The Court did not examine the public policy implications of enforcing the release agreement in question because the agreement could not “… withstand the less demanding test for indemnity agreements,” namely whether “… the language is sufficiently broad and unambiguous.” Id. at 426 (citing Eastern Airlines v. Ins. Co. of N. Am., 758 F.2d 132, 134 (3d Cir. 1985)).

[1] First, the Court examines the language of the Release Agreement pursuant to basic contract law to determine if it is “clear and unequivocal.” Joseph, 47 V.I. at 425. [HN3] A contract is ambiguous “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Booth v. Bowen, Civ. No. 2006-217, 2008 U.S. Dist. LEXIS 1678, *5, [WL], at *2 (D.V.I. January 10, 2008) (unpublished) (citing Church Mut. Ins. Co. v. Palmer Constr. Co., 153 Fed. Appx. 805, 808 (3d Cir.2005)).

The Release Agreement is less than one page long and contains the following relevant language: “In consideration for being permitted to participate in the Youth Environmental Summer Program (YES) the undersigned hereby releases and holds harmless the Virgin Islands Waste Management authority … as well as their employees, agents … FROM ANY AND ALL CLAIMS, DAMAGES (INCLUDING PERSONAL INJURY, PROPERTY OR CONSEQUENTIAL DAMAGES), LIABILITY AND/OR CAUSES OF ACTION, whether resulting from negligence, [*8] breach of warranty, strict liability, or otherwise arising out of or in any way related to the Youth Environmental Summer Program.” Original Motion, Exhibit 6 (italicized emphasis added).

The Release Agreement further states that “I understand that it is the intention of this Agreement that neither I nor my child will file a claim or law suit against VIWMA … except if the VIWMA is grossly negligent which negligence caused me or my child injury.” Id.

In Joseph, the Court found that the release agreement at issue was not sufficiently broad and unambiguous because it simply “… provided that a signer ‘absolve the school from liability to [the signer] or [his/her] child because of any injury to [his/her] child at school.’ ” Joseph, 47 V.I. at [**115] 421.3 The release agreement was deemed to be “… ambiguous on the issue of whether it releases the liability of the Academy and Ingrid Jeffers to the Plaintiff for negligence in the supervision of the after-school program.” Id. at 427.4 The Court held further that the release language was ambiguous as to what type of negligence was covered: “there is no mention of the agents or employees of the school and thus an imputed negligence theory premised on their actions may be outside [*9] the scope of this agreement.” Id.

3 The Court found that, “although there are circumstances where an ‘any or all liability’ provision has been interpreted to protect a party from actions based on the party’s own negligence, such a determination relied on other clear language within the agreement or circumstances that made the intent clear from the context.” Joseph, 47 V.I. at 427.

4 The Court found that “the release only purports to protect the school, the Academy, not its agents or employees like Ingrid Jeffers. While the Statement of Cooperation may be read to protect all such entities, that is neither the only permissible reading, nor the most reasonable.” Id. at 427.

[2, 3] With respect to the Release Agreement in this case, there are no such ambiguities. Ms. Jerrels, lawfully signing for her son Plaintiff Brandon Walker,5 agreed in no uncertain terms that she was giving up the right to sue VIWMA (“releases and holds harmless”) in exchange for Plaintiff’s participation in the YES program. The Release Agreement specifically extended coverage to VIWMA’s “employees, agents, contractors, subcontractors.”6 The Release Agreement sets forth its broad scope with specific language that provides greater context than the ambiguous exculpatory [*10] clause in Joseph, and provides clarity as to its intent by referencing that it covers “any and all claims, damages (including personal injury, property or consequential damages), liability and/or causes of action,” including claims “resulting from negligence [**116] [excepting gross negligence], breach of warranty, strict liability, or otherwise arising out of or in any way related to the Youth Environmental Summer Program,” while specifically confirming that Ms. Jerrels was waiving potential future claims and legal rights on behalf of her son. While the Release Agreement does not specifically release VIWMA from the negligent acts of its employees and agents, it broadly and clearly absolves VIWMA from liability stemming from acts of negligence in connection with the YES program. The average person can clearly comprehend, from the express language of the Release Agreement, that she is waiving her right to sue VIWMA for any act not arising from the gross negligence of VIWMA.

5 Ms. Jerrels lawfully bound her minor child to a contract by executing the Release Agreement in her capacity as his custodial guardian. See 16 V.I.C. § 342(a)(2).

6 [HN4] Courts in the Virgin Islands have held that broad terms may be enforceable in a release [*11] agreement: “The intent of the parties to the Release here is similarly clear. Indeed, there is only one way to interpret the Release’s clause exempting the defendants of liability ‘from all … causes of action of whatever kind or nature.’ … (‘The term “any and all” … is all-encompassing and leaves little doubt as to the liability from which the boat owners released the Yacht Club. In short, “all” means all.’ … ; Royal Ins. Co. v. Southwest Marine, 194 F.3d 1009, 1014 (9th Cir. 1999) (holding that a clause releasing the defendant from liability for ‘all claims, losses, damages, liabilities or expenses … resulting directly or indirectly from the performance of this Agreement’ clearly exempted the defendant from liability for breach of warranty, breach of contract, and negligence).” Piché v. Stockdale Holdings, LLC, 51 V.I. 657, 668 (D.V.I. 2009).

On the basis of the record, the Court finds that the Release Agreement contains broad and unambiguous language that specifically, clearly and unequivocally releases VIWMA from any liability for claims resulting from negligence related to its Youth Environmental Summer Program.

c. The best public policy for the Virgin Islands is to uphold release agreements signed by custodial guardians which waive claims for ordinary negligence against non-profit institutions working to service [*12] the community of the Virgin Islands.

Even though the Release Agreement is broad and unambiguous, the Court will examine “public policy considerations to determine the enforceability of an exculpatory clause,” where a custodial guardian waives a minor’s right to litigate his simple negligence claim. Joseph, 47 V.I. at 424 (citing Umali v. Mount Snow Ltd., 247 F. Supp. 2d 567, 573 (D.Vt. 2003)). VIWMA urges that case law from other jurisdictions draws a public policy distinction between release agreements provided in the context of civic or educational activities, as opposed to those provided in connection with participation in a commercial venture. Motion Supplement, at 4-6.

[4] There is no statute or binding common law rule in the Virgin Islands addressing the public policy concerns implicated when a parent or guardian waives a minor’s right to sue based on ordinary negligence. In the absence of binding Virgin Islands law, it is necessary to conduct a Banks analysis to determine the appropriate common law rule to apply to Plaintiff’s claim. See Banks v. International Rental & Leasing Corp., 55 V.I. 967, 977-78 (V.I. 2011); see also Gov’t of the Virgin Islands v. Connor, 60 V.I. 597 (V.I. 2014). [HN5] As long as the Court undertakes a Banks [**117] analysis, the Virgin Islands Supreme Court has made it abundantly clear that this Court is vested with the authority to create common law. (“The Superior Court possesses, in the [*13] absence of binding precedent from this Court, concurrent authority with this Court to shape Virgin Islands common law.” Banks, 55 V.I. at 977-78.)

The Court considers three factors in deciding what common law rule to adopt as the applicable standard for an issue in dispute: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Connor, 60 V.I at 600 (quoting Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013)).

[5, 6] As to the first factor, while no court in the Virgin Islands has addressed this specific question of whether a parental guardian can waive a minor’s pre-injury tort claims, several courts have examined the public policy implications of a release agreement barring the signor’s personal injury claims against a defendant. In Booth v. Bowen, the District Court upheld the traditional standard that any portion of a release barring claims of gross negligence is unenforceable, but did not address acts of ordinary negligence. 2008 U.S. Dist. LEXIS 1678 at *10, [WL], at *4. However, [HN6] “[u]nder the applicable Virgin Islands law, generally a party may exempt itself from liability for its own negligence.” Delponte v. Coral World Virgin Islands, Inc., 233 Fed. Appx. 178, 180 (3d Cir. 2007), citing Restatement (Second) of Contracts § 195 [*14] (1981). In an admiralty personal injury claim, the District Court upheld the rule that [HN7] “to be valid, the release must: (1) clearly and unequivocally indicate the intentions of the parties, and (2) not be inflicted by a monopoly, or a party with excessive bargaining power.” Piché v. Stockdale Holdings, LLC, 51 V.I. 657, 667 (D.V.I. 2009) (citations omitted).

[7] While the specific issue at hand of a custodial parent’s execution of a release on behalf of her minor child has not been addressed in the Virgin Islands, [HN8] ample case law from the Virgin Islands has upheld releases and waivers as effective hold-harmless clauses that bar a plaintiff from seeking damages as a result of ordinary negligence.

Second, the Court examines the position taken by a majority of courts from other jurisdictions. Persuasive authority regarding public policy concerns pertaining to releases is set forth in Restatement (Second) of Contracts § 195 (1981), but the specific issue of whether a parental [**118] guardian can waive a minor’s future right to bring an action for ordinary negligence is not addressed. A brief survey of case law throughout the United States follows to ascertain how other jurisdictions have handled this specific question.

In Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381 (2006), a parental guardian signed a pre-injury release [*15] on behalf of her minor son which purported to hold the owner of a private skate park harmless for acts of ordinary negligence resulting in injury on the defendant’s premises. Shortly after, the minor was injured and his guardian commenced an action for negligence. In responding to the defendant’s invocation of the clear and explicit release, the Supreme Court of New Jersey held that “… in view of the protections that our State historically has afforded to a minor’s claims and the need to discourage negligent activity on the part of commercial enterprises attracting children, we hold that a parent’s execution of a pre-injury release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable.” Id. at 338.

The New Jersey Court noted the important distinction between commercial enterprises and non-profit organizations which reflects the view held by the majority of jurisdictions:

The only published decisions in which such agreements have been upheld are in connection with non-commercial ventures, such as volunteer-run or non-profit organizations. Without expressing an opinion on the validity of parental liability releases in such settings, it [*16] suffices to note that volunteer, community, and non-profit organizations involve different policy considerations than those associated with commercial enterprises. Such a distinction is buttressed by the fact that the Legislature has afforded civil immunity from negligence to certain volunteer athletic coaches, managers, officials, and sponsors of non-profit sports teams, while not providing similar immunities from negligence in the commercial realm.

Id. at 337-38 (citations omitted).7

7 The New Jersey Supreme Court conducted a survey similar to that required in a Banks analysis identifying other courts throughout the country which have upheld minors’ release agreements for non-profit organizations: See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647, 648-50 (1990) (upholding parental agreement releasing any claims of minor child resulting from child’s participation in school-sponsored event); Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067 (Fla. Dist. Ct. App. 2004) (upholding parental liability release in context of “community or school supported activities”); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 207 (1998) (holding that parent may bind minor child to provision releasing volunteers and sponsors of non-profit sports activity from liability for negligence); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 741, 745 (2002) (concluding that parent had authority to bind minor child to exculpatory release as condition of child’s participation [*17] in public school extracurricular sports activities). Id. at 337-38.

[**119] In Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d. 367, 1998 Ohio 389, 696 N.E.2d 201 (1998), the Supreme Court of Ohio came to a similar conclusion when examining a release agreement indemnifying the non-profit Mentor Soccer Club from a minor’s ordinary negligence claims. The Court held that “… parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activities where the cause of action sounds in negligence. These agreements may not be disaffirmed by the child on whose behalf they were executed.” Id. at 374.

Similarly, in Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), the Supreme Court of Florida discussed and adopted the public policy considerations laid out in Zivich, stating:

These jurisdictions that have upheld pre-injury releases have done so because community-run and school-sponsored type activities involve different policy considerations than those associated with commercial activities. As the Ohio Supreme Court explained in Zivich, in community and volunteer-run activities, the providers cannot afford to carry liability insurance because volunteers offer their services without receiving any financial return. If pre-injury releases were invalidated, these volunteers would be faced [*18] with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort.

Id. at 363.

In Woodman v. Kera, LLC, 280 Mich. App. 125, 760 N.W.2d 641 (Mich. 2008), the Michigan Court of Appeals applied the rationale of Zivich, distinguishing between commercial and non-commercial activities in reviewing public policy considerations:

[**120] Concurrently, I acknowledge the public-policy concerns and reasoning underlying distinctions developed in other jurisdictions pertaining to the validity of such waivers dependent on the nature of the activity engaged in regarding for-profit and nonprofit activities or services. However, even following the reasoning of other jurisdictions, the exceptions recognized in those cases are not applicable given the for-profit nature of defendant’s business.

Id. at 149-50.

A survey of how other jurisdictions approach the public policy considerations involving a parental guardian’s waiver of her minor child’s future right to bring an action for ordinary negligence suggests that a majority of courts uphold such waivers in the limited circumstance when a waiver protects a non-profit institution from lawsuits based on ordinary negligence.

Finally, and most importantly, this Court must [*19] examine which approach represents the soundest rule for the Virgin Islands. In this regard, the public policy considerations of the noted jurisdictions are persuasive. The Court notes that there are limited opportunities in the Virgin Islands for elementary and secondary school children to participate in summer and afterschool activities. Many parents do not have the financial resources to take advantage of programs and activities requiring payment of fees or tuition of participants.

Fortunately, government-affiliated entities and non-profit organizations do provide certain opportunities for students free of charge, such as Defendant VIWMA’s YES Program. The YES Program promotes a range of important skills, allows teenagers to remain actively and positively engaged during the summer months and gives parents peace of mind in the knowledge of students’ participation in an educational and character-building program, all at no cost to them.8 It is important and in the public interest that opportunities for teens such as the YES Summer Program exist without cost to student participants and their parents.

8 Workshops included Character Building, Career Business, Career Hydroponics, Tool and Equipment [*20] Usage, Work Ethics and Career Bio Technology. See Defendant’s Original Motion, Exhibit 8.

As an activity of VIWMA, the YES Program is ultimately taxpayer funded. Defendant VIWMA would be exposed to liability if the Court [**121] were to hold its release for ordinary negligence invalid. Such a result would shift liability and costs to VIWMA and, by extension, the Virgin Islands government and taxpayers. This potential for liability could result in the discontinuation of the tuition-free YES Program. “[I]n community and volunteer-run activities, the providers cannot afford to carry liability insurance because volunteers offer their services without receiving any financial return. If pre-injury releases were invalidated, these volunteers would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort.” Kirton, 997 So. 2d at 363.

[8] Because the risk of exposure to liability carries with it the real possibility that VIWMA may be unable or unwilling to provide YES Program tuition-free to its participants, the Court finds that the public interest is best served by upholding the Release Agreement according to its terms.

[9] [HN9] Custodial [*21] parents may, as did Alesia Jerrels in this case, lawfully prosecute personal injury claims on behalf of their minor children who have been harmed by the tortious act of third parties, as part of their obligation to provide support.9 The same provisions that allow a custodial parent to sue on behalf of a minor child conversely permit the parent to enter into a contractual agreement on behalf of the child to agree to forgo the right to sue in exchange for the right to participate in a not-for-profit educational program.

9 See 16 V.I.C. § 342(a)(2). Also by 15 V.I.C. § 824 (“Rights of guardians and parents”), parents “shall be entitled to the custody of the person of the minor and the care of his education.”

The release from liability provided in this case in exchange for the right to participate in the YES Program sufficiently protected Plaintiff’s interests from overreaching on the part of VIWMA. To be effective, the Release Agreement must be clear and unambiguous. It may only shield VIWMA from ordinary negligence, but not from gross negligence or the reckless conduct of VIWMA, its agents or employees. The Release Agreement in favor of VIWMA is upheld only because and to the extent that VIWMA acts as a non-profit providing [*22] a program of benefit to the community.

In balancing the benefits and potential detriments to upholding the Release Agreement, the Court concludes that the soundest rule for the [**122] Virgin Islands, and the common law rule it adopts follows the majority of other jurisdictions to uphold the Release Agreement signed by Plaintiff’s custodial parental guardian during his minority which waives his claims for ordinary negligence against VIWMA, operating as a not-for-profit organization providing a service benefitting the community of the Virgin Islands.

CONCLUSION

There are no genuine issues of material fact that preclude entry of judgment as a matter of law dismissing with prejudice Count II of Plaintiff’s Second Amended Complaint against VIWMA, alleging Negligent Hiring, Retention, Training and Supervision. In the light most favorable to the nonmoving party, the Release Agreement is a clear and unequivocal exculpatory agreement, containing broad and unambiguous language that releases VIWMA from all ordinary negligence. On the basis of the existing record, the Court cannot conclude that public policy considerations preclude enforcement of the Release Agreement.

In light of the foregoing, Defendant [*23] VIWMA’s Motion for Summary Judgment on Count II — Negligent Hiring, Retention, Training and Supervision will be is granted and Count II will be dismissed with prejudice as to Defendant VIWMA only. An Order consistent with this Memorandum Opinion will enter forthwith.

ORDER

In accordance with the Memorandum Opinion in this matter entered this date, it is hereby

ORDERED that Defendant Virgin Islands Waste Management Authority’s (VIWMA) Motion for Summary Judgment on Count II — Negligent Hiring, Retention, Training and Supervision is GRANTED and Count II is DISMISSED WITH PREJUDICE as to Defendant VIWMA.


Florida statute that allows a parent to release a minor’s right to sue

TITLE 43.  DOMESTIC RELATIONS (Chs. 741-753)

CHAPTER 744.  GUARDIANSHIP

PART III.  TYPES OF GUARDIANSHIP

GO TO FLORIDA STATUTES ARCHIVE DIRECTORY

Fla. Stat. § 744.301 (2012)

§ 744.301.  Natural guardians

   (1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.

(2) Natural guardians are authorized, on behalf of any of their minor children, to:

   (a) Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any of said minor children;

   (b) Collect, receive, manage, and dispose of the proceeds of any such settlement;

   (c) Collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust;

   (d) Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and

   (e) Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined by s. 710.102, of which the minor is a beneficiary, participant, or owner, without appointment, authority, or bond, when the amounts received, in the aggregate, do not exceed $ 15,000.

(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.

   (a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:

      1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and

      2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.

   (b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:

                 NOTICE TO THE MINOR CHILD‘S NATURAL GUARDIAN

            READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE

   AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A

   POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT,

   EVEN IF ( name of released party or parties ) USES

   REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A

   CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED

   BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE

   CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT

   BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE

   GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER

   FROM ( name of released party or parties ) IN A

   LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO

   YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM

   THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU

   HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND

   ( name of released party or parties ) HAS THE

   RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU

   DO NOT SIGN THIS FORM.

   (c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.

      1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.

      2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.

      3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.

   (d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.

(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.

HISTORY:  S. 1, ch. 74-106; s. 8, ch. 75-166; s. 7, ch. 75-222; s. 1, ch. 77-190; s. 3, ch. 79-221; s. 17, ch. 89-96;  s. 22, ch. 92-200;  s. 66, ch. 95-211;  s. 73, ch. 97-170;  s. 11, ch. 2002-195;  s. 8, ch. 2005-101;  s. 3, ch. 2006-178, eff. July 1, 2006;  s. 2, ch. 2010-27, eff. Apr. 27, 2010.

NOTES:

AMENDMENTS

   The 2005 amendment by s. 8, ch. 2005-101, effective June 1, 2005, rewrote (2).

   The 2006 amendment by s. 3, ch. 2006-178, effective July 1, 2006, in (1), substituted “the surviving parent remains the sole natural guardian even if he or she” for “the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent” in the second sentence and made minor stylistic changes; substituted “Natural” for “The natural guardian or” at the beginning of (2); substituted “amounts received, in the aggregate, do” for “amount involved in any instance does” in the last undesignated paragraph in (2); in (3), inserted “for the benefit of the ward” and substituted “specified” for “provided for” in the first sentence and added the last sentence; and deleted former (4).

   The 2010 amendment added (3); redesignated former (3) as (4); and substituted “this section are” for “subsection (2) shall be” in the first sentence of (4).

NOTE.–

   Created from former s. 744.13.

FLORIDA STATUTES REFERENCES

   Chapter 549. Automobile Race Meets, F.S. § 549.09. Motorsport nonspectator liability release.

   Chapter 739. Florida Uniform Disclaimer of Property Interests Act, F.S. § 739.104. Power to disclaim; general requirements; when irrevocable.

   Chapter 744. Guardianship, F.S. § 744.387. Settlement of claims.

FLORIDA ADMINISTRATIVE CODE REFERENCES

   Chapter 19-11 Procedures for the Public Employee Optional Retirement Program, F.A.C. 19-11.003 Distributions from Frs Investment Plan Accounts.

1. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).

2. Despite a father’s claim that Georgia was the home state of his child born out of wedlock for purposes of custody under Fla. Stat. § 61.514 of the Uniform Child Custody Jurisdiction Act, a Florida circuit court had jurisdiction to enter an emergency child pick-up order ex-parte because: (1) the child’s mother was a Florida resident when the child was born, the child was born in Florida, and the mother, after living in Georgia for a time, returned to live in Florida; (2) the order simply enforced the mother’s presumptive rights under Fla. Stat. § 744.301(1) until a court determined otherwise and was not a determination as to the father’s ultimate custody rights; and (3) the emergency order was not inconsistent with O.C.G.A. § 19-2-4(a), O.C.G.A. § 19-7-22(a) and (c), and O.C.G.A. § 19-7-25. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).

3. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).

4. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

5. Pursuant to Fla. Stat. § 744.301(1) a mother, the non-custodial parent, had a right to custody of her child upon the death of the father, the custodial parent, where the father obtained custody of the 10 month old child when the parents divorced, the father moved with his child and new wife to another county three years after the divorce and actively thwarted the mother’s attempts to visit her child so that the mother was unable to see her child for seven years, and the father’s widow, who sought custody of the child upon the father’s death, was unable to prove by clear and convincing evidence that the mother was unfit. Webb v. Webb, 546 So. 2d 1062, 1989 Fla. App. LEXIS 2951 (Fla. 3rd DCA 1989), review denied by 553 So. 2d 1168, 1989 Fla. LEXIS 1234 (Fla. 1989).

6. Mere fact that a father had enforceable rights and obligations to his child born out of wedlock by virtue of his acknowledgement of paternity did not equate to his having a right to temporary custody superior to the mother’s prior to a court declaration to that effect. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).

7. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

8. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).

9. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

10. Where child’s father had executed agreement to pay for child’s required medical care, the hospital was not foreclosed from seeking recovery against the mother under an implied in law contract predicated upon her duty to support her child under Fla. Stat. § 744.301. Variety Children’s Hospital, Inc. v. Vigliotti, 385 So. 2d 1052, 1980 Fla. App. LEXIS 17190 (Fla. 3rd DCA 1980).

11. Admitted father of premature infant girl was a natural guardian of the infant under Fla. Stat. § 744.301(1), despite infant’s illegitimate status; therefore, unwed father was responsible for infant’s necessary emergency medical services. De Costa v. North Broward Hosp. Dist., 497 So. 2d 1282, 1986 Fla. App. LEXIS 10561 (Fla. 4th DCA 1986).

12. Fla. Stat. § 744.301(1) provides that the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction entered an order stating otherwise. Muniz v. State, 764 So. 2d 729, 2000 Fla. App. LEXIS 8142 (Fla. 2nd DCA 2000).

13. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).

1. Florida Civil Procedure, Chapter 9. Amended and Supplementary Pleadings; Pretrial Procedure, § 9-3. Settlements.

2. Florida Estates Practice Guide, Chapter 18 Beneficiaries’ Rights, Part I. Legal Background, § 18.11 Disclaimer of Interest in Property.

3. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.04 Natural Guardians.

4. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.43 Litigation Involving Ward.

5. Florida Estates Practice Guide, Chapter 36 Right to Property of an Intestate, Part III. Forms, § 36.204 Petition for Authorization to Execute Qualified Disclaimer.

6. Florida Estates Practice Guide, Appendix PRG Florida Probate and Guardianship Rules, Part I General, Rule 5.040. Notice.

7. Florida Family Law, Division I Marriage, Chapter 3 Cohabitation, B. Rights and Obligations of Cohabitating Partners and their Children, § 3.11 Rights and Obligations Concerning Children.

8. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, C. Basis for Determinations of Parental Responsibility and Timesharing, § 32.20 Parents’ Rights and Duties.

9. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, D. Effect of Shared Parental Responsibility and Timesharing Determinations, § 32.30 Rights and Duties of Parents.

10. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part II. Practice Guide, B. Preliminary Determinations, § 32.111 Action for Shared Parental Responsibility.

11. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part I. Legal Background, § 33.01 Parents’ Duty to Support Child.

12. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.110 Duty to Support Child.

13. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.116 Child Support Order in Paternity Action.

14. Florida Family Law, Division IV Dissolution of Marriage, Chapter 82 Modification of Child Support, Part I. Legal Background, § 82.03 Practice and Procedure.

15. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.03 Interests and Status of Natural Father.

16. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.06 Father’s Rights to Parental Responsibility and Timesharing.

17. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, B. Establishing Paternity in Paternity Proceeding, § 90.20 Overview of Paternity Proceeding.

18. Florida Family Law, Division V Parent-Child Relationships, Chapter 92 Nonparental Custody, B. Proceedings Involving Nonparental Custody, § 92.10 Type of Proceedings.

19. Florida Family Law, Division VI Other Procedures, Chapter 101 Disabilities of Minority, A. Disabilities of Minority, § 101.03 Other Aspects of Disabilities of Minority.

20. Florida Probate Code Manual, Chapter 1 Intestate Succession, § 1.12 Disclaimer.

21. Florida Probate Code Manual, Chapter 5 Rights of the Decedent’s Children, § 5.13 Disclaimer.

22. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.03 Natural Guardians.

23. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.09 Guardians Ad Litem.

24. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.02 Powers of Natural Guardian.

25. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.04 Powers and Duties of Guardian Ad Litem.

26. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.11 Bringing and Defending Actions; Settling Claims.

27. Florida Probate Code Manual, Florida Probate Rules, Scope.

28. Florida Real Estate Transactions, Part II. The Deed, Chapter 10. Parties to the Deed, § 10.03 Deeds by Minors.

29. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, A. Settlement, 1. Settlement Procedures and Techniques, § 141.06 Statutes Affecting Settlements.

30. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.53 Enforcement and Avoidance.

31. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.54 Release by Natural Guardian for Minor Participating in Activities with Inherent Risks.

32. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 13 Settlement, IV. Entering Into a Settlement Agreement, § 13.19 Authority of Third Persons to Enter Settlement Agreements.

33. LexisNexis Practice Guide: Florida Estate & Probate Practice, Chapter 10 Wills: Administrative Provisions, II. Appointing Fiduciaries, § 10.06 Appoint a Guardian.

34. LexisNexis Practice Guide: Florida Personal Injury, What’s New, Scope.

35. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, I. Overview, § 9.02 Master Checklist.

36. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.36 Checklist.

37. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38 Determine Whether Parent Executed Enforceable Pre-Injury Release.

38. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38B Establish Immunity for Motorsport Activities.

39. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 4 Parties, III. Party Must Have Standing in Action, § 4.08 Standing Generally Requires Party’s Interest in Action.

40. Planning for the Elderly in Florida, Chapter 17 Guardianship, § 17.06 Types of Guardianships.

41. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.03 Legal Background.

42. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.04 Preliminary Determinations.

43. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.02 Research Guide.

44. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.03 Legal Background.

45. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 341.02 Research Guide.

46. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 362.22 Right to Custody of Minor Children.

1. Case Comment: Constitutional Law: The Limits of a Patient’s Right to Refuse Medical Treatment, Troy Rillo, April 1994, 46 Fla. L. Rev. 347.

2. Comments: Lagging Behind The Times: Parenthood, Custody, and Gender Bias in the Family Court, Cynthia A. Mcneely, Summer 1998, 25 Fla. St. U.L. Rev. 891.

3. A Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Casesa Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Cases, Caroline E. Johnson, Fall 1993, 21 Fla. St. U.L. Rev. 617.

4. The Minefield of Liability for Minors: Running Afoul Of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.

5. The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.

6. Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls For Statutory Reform, The Honorable Chris W. Altenbernd, Winter 1999, 26 Fla. St. U.L. Rev. 219.

7. Student Work: Redefining Parenthood: Removing Nostalgia From Third-Party Child Custody and Visitation Decisions in Florida, Sarah E. Kay, Fall 2009, 39 Stetson L. Rev. 317.

8. The Validity of Binding Arbitration Agreements and Children’s Personal Injury Claims in Florida After Shea v. Global Travel Marketing, Inc., Douglas P. Gerber, Fall 2003, 28 Nova L. Rev. 167.

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Alaska statute on Parents right to sign away minors right to sue

TITLE 9.  CODE OF CIVIL PROCEDURE

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CHAPTER 65.  ACTIONS, IMMUNITIES, DEFENSES, AND DUTIES

Go to the Alaska Code Archive Directory

Alaska Stat. § 09.65.292  (2012)

Sec. 09.65.292.  Parental waiver of child’s negligence claim against provider of sports or recreational activity

   (a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.

(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.

(c) In this section,

   (1) “child” means a minor who is not emancipated;

   (2) “parent” means

      (A) the child’s natural or adoptive parent;

      (B) the child’s guardian or other person appointed by the court to act on behalf of the child;

      (C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;

      (D) a person who has a valid power of attorney concerning the child; or

      (E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;

   (3) “provider” has the meaning given in AS 09.65.290;

   (4) “sports or recreational activity” has the meaning given in AS 09.65.290.

HISTORY: (§ 2 ch 67 SLA 2004)

NOTES: CROSS REFERENCES. –For findings and legislative intent statement applicable to the enactment of this section, see § 1, ch. 67, SLA 2004, in the 2004 Temporary and Special Acts.

EDITOR’S NOTES. –Section 3, ch. 67, SLA 2004 provides that this section applies “to acts or omissions that occur on or after September 14, 2004.”

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

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Arizona limited right for parent to waive child’s right to sue

State Seal of Arizona.

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TITLE 12.  COURTS AND CIVIL PROCEEDINGS

CHAPTER 5.  LIMITATIONS OF ACTIONS

ARTICLE 3.  PERSONAL ACTIONS

Go to the Arizona Code Archive Directory

A.R.S. § 12-553 (2011)

§ 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions

   A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:

   1. The person has taken control of the equine from the owner or agent when the injury or death occurs.

   2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.

   3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.

   4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person’s representation of his skills, health and experience with and knowledge of equines.

B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.

C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner’s permission is not liable for injury to or death of the equine or the rider or handler.

D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:

   1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.

   2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

E. As used in this section:

   1. “Equine” means a horse, pony, mule, donkey or ass.

   2. “Release” means a document that a person signs before taking control of an equine from the owner or owner’s agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

HISTORY: Last year in which legislation affected this section: 1998

NOTES:

Premises Liability

SCOPE OF IMMUNITY.

   This section does not shield stable owners from claims for negligent supervision, which do not involve horseback riding or activities directly relating thereto. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (Ct. App. 1998).

   Grant of summary judgment in favor of the riding stable operator was proper where the document that the rider signed contained sufficient information to have been considered a release; further, this section does not completely deprive injured equine riders of a remedy and thus it does not violate the anti-abrogation clause, Ariz. Const. art. 18, § 6. Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557, 2003 Ariz. App. LEXIS 162 (Ct. App. 2003).

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