If you are a parent, you know the drill. You take your child to a gymnastics facility for lessons and you are asked to sign a release of liability before the first summersault.
The release (if you read it) says something or the other about releasing the facility and a bunch of other people from liability if your child gets hurt. You sign it because the lesson is about to start and your child wants to start tumbling...now! Is the form worth the paper it’s written on? The answer depends on which state you are in.
In Illinois, the court has clearly stated that a parent cannot waive, compromise or release a minor child’s cause of action.
In Meyer v. Naperville Manor, Inc., 634 N.E.2d 411 (1994), the plaintiff’s mother signed a release of liability on behalf of her daughter, Alicia, prior to her commencing horseback lessons at the defendant’s facility. The waiver released the defendant from liability for any and all claims of personal injury arising out of riding lessons. During one of Alicia’s lessons, the horse bolted, Alicia fell off and was injured. The defendant argued that the release was a complete bar to the plaintiff’s cause of action. On appeal, the court ruled that absent any statute or judicial approval, a release of liability signed by a parent is not valid.
Subsequent to the decision in Meyer, the Illinois legislature enacted the Equine Activity Liability Act which expressly allows a release assuming responsibility for the risks of engaging in equine activities. Arguably the legislature purposely chose to limit execution of a release by a parent to equine activities. To date, the Illinois Supreme Court has not addressed the issue of minor releases. At least in non-equine activities, Meyer is still good law, and waivers of liability executed by parents on behalf of their children are not enforceable.
Equine Activity Liability Act
On the other hand in Florida, pre-activity releases signed by parents are valid, in the context of commercial activities.
The current state of the law in Florida is the result of legislative action taken in 2010, which overruled the Florida Supreme Court decision in Kirton v. Fields, 997 So. 2d 349 (Fla. 2008). That case involved the death of a minor child from injuries sustained while riding an ATV at a commercial motorsports facility. The child’s father had signed a pre-activity release. The Florida Supreme Court declared the release invalid and contrary to public policy.
However, two years later, the Florida legislature took aim at the decision and passed an amendment to Section 744.301 of the Florida Statutes. The new law allows parents and natural guardians to sign pre-injury releases on behalf of minors in commercial activities, but only for those dangers inherent in the activity. “Inherent risk” is defined in the statute as “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.” What is an inherent risk? As an example, if your child is participating in an open gym, inherent risks might include sprains, strains, cuts, or the like.
The legislatures in a number of other states have also enacted laws which allow a parent to sign a release on behalf of their minor children.
For instance, Colorado (which depends on skiing and outdoor recreation), has enacted legislation that permits a parent to release or waive a child’s claim for negligence. Numerous other states have not addressed the issue or have divided court opinions on the matter. For instance, a recent decision in Wisconsin (Atkins v. Swimwest Family Fitness Center, 2005 WI 4 (Wis. 2005)) brings into question the enforceability of all releases in the state. Bottom line: the enforceability of these releases depends on the state in which they are signed.