Parental Waivers: Are They Enforced In Your State?

In At Least 45 States,

a well-written liability waiver that is voluntarily signed by an adult can, under many circumstances, protect a service provider from liability for injuries – to that adult – resulting not only from the inherent risk of the activity, but also from the provider’s own negligent conduct. 

One major concern in the equine industry, however, is whether the liability waiver can effectively release the provider from liability for injuries to a minor participant. Whether a waiver, often called “parental waiver”, signed by a parent or legal guardian on behalf of a minor is enforceable depends largely on the state in which the activity occurs.

Some states…

believe that parents have no authority to release or compromise claims or causes of action belonging to minors. Courts in these states have reasoned that since a parent cannot release a child’s cause of action after an injury, the parent has no authority to release the cause of action prior to the injury. Some courts have specifically ruled to prohibit the enforcement of parental waivers used by commercial entities yet continue to enforce parental waivers used by non-profit entities.

Other states do allow service providers such as riding instructors and equestrian facilities to protect themselves from liability for injuries to minors and have decided to enforce parental waivers signed on behalf of minors – so long as the waiver is properly drafted and adequately informs the parent of the risks involved in the activity.

Courts in these states have emphasized the importance of encouraging recreational activities by allowing providers to protect themselves from liability and have highlighted the importance of parental authority – citing a parent’s right of personal choice in family matters and a parent’s fundamental liberty interest in the care, custody, and management of their children.

Some states have gone a step further and enacted legislation allowing the enforcement of parental waivers.   Some statutes in these states provide that a parent may release or waive a child’s prospective claim for negligence against a provider.  Other statutes limit the effectiveness of the parental waivers, allowing them to be effective to protect the service provider from liability for the inherent risks of the activity, but not the provider’s negligence.

Liability waiver law is extremely nuanced – even more so when the document attempts to cover minor participants.  For maximum effectiveness and to increase the likelihood that your waiver will be enforced, the document should be specifically tailored to your needs and drafted by an attorney who is knowledgeable in high-risk recreational activity waiver law in your state.