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

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

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

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

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

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

Plaintiff Claims: Contract failed to compel arbitration

Defendant Defenses: Arbitration

Holding: For the Plaintiff

Year: 2018

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court laughed that one out the door.

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

So Now What?

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

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

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

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

What do you think? Leave a comment.

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

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

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

No. A-4589-16T1

Superior Court of New Jersey, Appellate Division

February 22, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 18, 2018

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

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

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

Before Judges Currier and Geiger.

PER CURIAM

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

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

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

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

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

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

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

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

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

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

Waiver of Trial, and Agreement to Arbitrate

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

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

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

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

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

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

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

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

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

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

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

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

Affirmed.

Notes:

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

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

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

 


States that allow a parent to sign away a minor’s right to sue.

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: http://www.recreation-law.com

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,

 

 


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

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

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

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New Minnesota statute attempted to eliminate releases and thankfully, might have made release law in MN better

Thankfully, law does not change anything and to some extent, helps to reinforce releases in Minnesota and releases for minors.

Several attempts were made this year to eliminate releases in Minnesota. The statute specifically includes recreational activities in its language. The result signed into law prevents releases from relieving liability for greater than ordinary negligence.

Even if the language is in the release the language is severable, which means it does not void the release, just the specific language.

However, the law does not change anything because greater than ordinary negligence, gross, will, wanton or intentional negligence, have never been covered by a release.

Here is the new statute.

JUDICIAL PROOF

CHAPTER 604.  CIVIL LIABILITY

ACTIONS INVOLVING FAULT GENERALLY

Minn. Stat. § 604.055 (2014)

604.055 WAIVER OF LIABILITY FOR NEGLIGENT CONDUCT

   Subdivision 1.  Certain agreements are void and unenforceable. –An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.

The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from conduct that constitutes ordinary negligence or for risks that are inherent in a particular activity.

Subd. 2.  Party or parties. –For the purposes of this section, “party” or “parties” includes a person, agent, servant, or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.

Subd. 3.  Other void and unenforceable agreements. –This section does not prevent a court from finding that an agreement is void and unenforceable as against public policy on other grounds or under other law.

Subd. 4.  Nonapplication to certain claims. –This section does not apply to claims against the state pursuant to section 3.736 or a municipality pursuant to section 466.02.

HISTORY:  2013 c 118 s 1

NOTES:

The good news is the definition of a party to the release includes a “…minor or another who is authorized to sign or accept the agreement on behalf of the minor. That adds more support to Minnesota law, which has allowed a parent to sign away a minor’s right to sue. See Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

Greater interest is the rest of the definition of a party. “…accept the agreement on behalf of the minor.” Can a Scoutmaster or Little League coach who has been told by the minor’s parents you can sign stuff for my kid, release someone from liability? Legally, it seems like a stretch, but this is the best argument I’ve ever seen for such actions.

The bill appears to be a compromise from an attempt to eliminate releases totally and after the arguments, this was the result. Thank heavens!

This does  one thing; it legislatively states that releases are OK. You can’t argue now, that releases are void in Minnesota for any legislative reason. And maybe someone other than a parent can sign away a minor’s right to sue.

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

 

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741

Ruling is by the Federal District Court and only a preliminary motion

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

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