Case of the Day – Friday, November 12, 2021


I have written before about preprinted and non-negotiable waivers of liability. You know…that dense print on your coat check receipt, or 6-point type on the form you sign at the ski resort, which says something about whatever happens to you isn’t their fault.

Whether the waiver is enforceable is a debatable proposition, with different answers depending on the facts of the case. But what about a waiver form your child brings home, something requiring your John Hancock so that he or she can go with friends to ski or roller blade or (as in today’s case) bounce on a trampoline?

Even if you – a rational, thoughtful and risk-adverse adult – can sign away your right to seek compensation from others whose negligence or worse injures you, can you give away your kid’s right to do so?

The Kentucky Supreme Court, in a decision that is a little creepy in its “big brother” approach to your right to be parent to your child, said that you cannot, at least where the waiver is sought by some rapacious commercial enterprise. And face it, all of the best fun (and greatest risk) is offered by such enterprises: amusement parks, scuba diving schools, zipline operators, skydiving entities.

The Kentucky Supreme Court blithely assumes that the commercial defendants can simply buy insurance without pricing their services out of the marketplace or taming the adventures they offer.

E.M. v. House of Boom Ky., LLC, 575 S.W.3d 656 (Supreme Ct. Kentucky, 2019). House of Boom is a for-profit trampoline park, a collection of trampoline and acrobatic stunt attractions. Kathy Miller purchased tickets for her 11-year-old daughter, E.M., to go play at House of Boom.

Before purchasing a ticket, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability, which waives claims arising from “negligent acts and/or omissions committed by HOUSE OF BOOM or any EQUIPMENT SUPPLIERS, whether the action arises out of any damage, loss, personal injury, or death to me or my spouse, minor child(ren)/ward(s), while participating in or as a result of participating in any of the ACTIVITIES in or about the premises.”

The waiver includes language that, if enforceable, would release all claims by (1) the individual who checked the box, (2) her spouse, (3) her minor child, or (4) her ward against House of Boom. Once Kathy Miller checked the box, E.M. used the trampolines at House of Boom, and was injured when another girl jumped off a three-foot ledge onto E.M’s ankle, breaking it.

Kathy sued on House of Boom on behalf of her daughter in Federal district court. House of Boom, relying on Kathy’s legal power to waive her daughter’s rights of her court concluded that House of Boom’s motion for summary judgment involved a novel issue of state law, and used a procedure by which a federal court may certify such a question to the state supreme court for resolution.

Held: A pre-injury liability waiver signed by a parent on behalf of a minor child was unenforceable because under the common law, absent special circumstances, a parent had no authority to enter into contracts on a child’s behalf.

Pre-injury release waivers are not automatically invalid in Kentucky, but they are generally disfavored and are strictly construed against the parties relying on them. The courts analyze these agreements for violations of public policy.

The liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by law. Although parents have a fundamental liberty interest in the rearing of one’s child, this right is not absolute, and the State may step in as parens patraie to protect the child’s best interests of the child. The question whether a parent may release a minor’s future tort claims implicates wider public policy concerns, the Court said, as well as the parens patriae duty to protect the best interests of children.

Section 405.020 of the Kentucky Revised Statutes provides that the father and mother shall have the joint custody, nurture, and education of their minor children. However, this grant of custody and parents’ right to raise their child, choose the child’s educational path, and make healthcare decisions on a child’s behalf has never abrogated the traditional common law view that parents have no authority to enter into contracts on behalf of their child when dealing with a child’s property rights, prior to being appointed guardian by a district court.

Even when acting as next friend in a lawsuit, a minor’s parent has no right to compromise or settle a minor’s claim without court approval or collect the proceeds of a minor’s claim.

As litigation restrictions upon parents have remained a vital piece of the Commonwealth’s civil practice and procedure, the Court refused to recognize any parental right to quash their child’s potential tort claim.

Children deserve as much protection from the improvident compromise of their rights before an injury occurs as the common law and statutory schemes afford them after the injury. The law generally treats preinjury releases or indemnity provisions with greater suspicion than post-injury releases. Such an exculpatory clause that relieves a party from future liability, the Court held, may remove an important incentive to act with reasonable care.

Such clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, on the other hand, relates to negligence that has already taken place and is subject to measurable damages. Those after-the-fact releases involve actual negotiations concerning ascertained rights and liabilities.

Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario. The public policy reasons for protecting a child’s civil claim pre-injury are no less present than they are post-injury.

Besides, the Court observed, a commercial entity has the ability to purchase insurance and spread the cost over its customer base. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself or herself from the negligence of others within the confines of a commercial establishment. If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.

– Tom Root


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