Can Parents Waive Children’s Personal-Injury Claims?

Parents of children, especially young children, live in dread of spending their weekends at birthday parties.  Gymnastics party!  Waterpark party!  Paintball party!  To add insult to injury, it always involves a release of liability, which the parent promises that she has carefully read and fully understands (really, who has time to read and interpret three pages of incomprehensible legal gobbledygook with 60 screaming children swarming the check-in table?) and frantically scribbles her name on the release in a rush to get her child into the party zone.

In Texas, as well as several other jurisdictions, the old adage “barely worth the paper it is written on” has some authority.  Several courts across the country have found that parents cannot waive a child’s right to bring a personal-injury action.  For example, in Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex.App.—Houston [14th Dist.] 1993, no writ), the court wrote:

We hold that … the [Texas] Family Code,[1] which empowers a parent to make legal decisions concerning their child, does not give parents the power to waive a child’s cause of action for personal injuries. Such an interpretation of the statute would be against the public policy to protect minor children.  [¶] Our decision is based on what our supreme court has described as a “strong, long-standing policy of this state to protect the interests of its children.”

Relying on Munoz and a string of similar cases from other states, one U.S. District Court in Texas agreed.  In Paz v. Life Time Fitness, Inc., 757 F. Supp.2d 658, 663 (S.D.Tex.2010), the court wrote:

Based on the case law in Texas and in other jurisdictions, this court holds that the preinjury release executed by the minor’s mother in this case is not enforceable to release the defendants from all liability for the minor’s injuries.  [T]he release of a commercial enterprise from liability for the child’s injuries is not enforceable.

The Paz court found that, while a release of a child’s claim is invalid against commercial enterprises, the release may be enforceable if the child is participating in school-run or community-sponsored nonprofit activities.  The Munoz court did not discuss the nonprofit vs. commercial distinction, and based on its analysis, it is not clear whether Texas courts would agree that the public policy favoring volunteer and community events would outweigh the public policy interest in protecting children’s legal rights.

Some states have enacted legislation in response to similar judicial findings.  In Colorado, where the state’s financial health is heavily dependent on skiing and outdoor recreation, the Colorado General Assembly swiftly responded to its Supreme Court’s ruling[2] that a parent or guardian could not release a minor’s prospective claim for negligence by enacting legislation that permits a parent to release or waive the child’s prospective claim for negligence (but not gross negligence).[3]  The Florida Legislature also responded to its similar Supreme Court decision[4] by permitting parents to release a commercial activity provider for a child’s injuries occurring as a result of the inherent risk of the activity under certain circumstances.[5]

Of course, a release may still be a valid waiver of a parent’s claims arising from his or her child’s injuries.  But in Texas, don’t assume that a release that a parent signed was an effective waiver of her child’s claim.  Instead, be sure to consult O’Connor’s Texas Causes of Action and O’Connor’s Texas Family Law Handbook to determine the rights and limitations of parents to make legal decisions and bring suit on behalf of their children.

 

 


[1] Tex. Fam. Code §151.001(a)(7) (former Tex. Fam. Code §12.04(7)).  In Texas, a parent of a child has the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child.

[2] Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo.2002).

[3] S.B. 03-253, §1, 64th Gen. Assem., 1st R.S., eff. May 14, 2003, as codified in Colo. Rev. Stat. §13-22-107 (2013).

[4] Kirton v. Fields, 997 So.2d 349, 358 (Fla.2008).

[5] Fla. Stat. §744.301(3) (2013).

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