Are Minor Liability Waivers Enforceable in Tennessee?
The firm recently filed a motion and brief in a Davidson County Circuit Court case arguing, among other things, that such waivers are, in fact, enforceable. Most parents are familiar with signing routine liability releases before their children attend school fieldtrips, play in youth sports leagues, or participate in activities at recreational facilities in a variety of contexts. Our case, for instance, involves a typical scenario where a parent signed a waiver for her child to participate in a dodgeball game at a trampoline facility.
Before 1990, the traditional rule in Tennessee held that the liability waiver was not worth the paper it was written on. This rule was illustrated in the Tennessee Court of Appeals decision of Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989), a case which, in our view, has been entirely undeveloped. For example, Childress has been applied directly only once since it was rendered. See Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990). Even then, in Rogers the parties all but conceded to the Childress rule.
The Childress court ultimately determined that because Tennessee law does not provide a parent with authority to release her minor child’s existing claims in a settlement agreement without court approval, it could not provide her authority to waive her minor child’s future claims through a liability waiver for future injuries. Thus, Childress ultimately rests on the position that the state’s obligation to protect minors prevails over a parent’s authority to decide to waive her child’s future tort claims as a condition of participation in activities she deems worthwhile. We feel that notion is outdated.
For example, new case law strongly suggests the contrary. In the nearly 30 years since Childress, both the Tennessee Supreme Court and the United States Supreme Court have issued opinions unequivocally and emphatically affirming a parent’s privacy right in making parenting decisions and recognized that right as a fundamental liberty interest protected from state intervention by both Article I, Section 8 of the Tennessee Constitution and the Due Process Clause of the United States Constitution. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993); Troxel v. Granville, 530 U.S. 57 (2000).
Simply stated, one thing is abundantly clear since Childress: the state undeniably faces stricter restrictions limiting its intervention in parenting decisions than what was arguably once thought. Only one year after Childress, for example, the California Court of Appeals issued its landmark decision in Hohe v. San Diego Unified School Dist., 224 Cal. App. 3d 1559 (Cal. Ct. App. 1990), enforcing a nearly identical liability waiver signed by a parent against his minor child that paved the way for a substantial trend favoring enforcement. Courts in numerous states have followed California’s lead and now enforce liability waivers signed by parents against their minor children in a wide variety of contexts, from youth sports leagues and cheerleading programs, to snow skiing and horseback riding. See Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201 (Ohio 1998); Fischer v. Rivest, 2002 WL 31126288 (Conn. Super. Ct. 2002); Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546 (Wi. Ct. App. 2002); Saccente v. LaFlamme, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003); Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002).
These cases reveal that in the eyes of the law, when parents agree to release a party from their minor children’s prospective tort claims in exchange for their child’s participation in a beneficial activity, they are making “important family decision[s] cognizant of the risk of physical injuries to [their children] and the financial risk to the family as a whole.” Sharon, 769 N.E.2d at 747. Thus, the landscape is now clear: those parenting decisions prevail over the state’s interest to protect minors.
Recognizing a parent’s decision to shoulder the financial risk of injury to their children does not interfere with any other public policy considerations, like a child’s general right to disaffirm and/or avoid their own contracts. That right is rooted in the “infancy doctrine” intended to “protect minors from their lack of judgment” and from “crafty adults who would take advantage of them in the marketplace.” Dodson by Dodson v. Shrader, 824 S.W.2d 545, 547 (Tenn. 1992). Accordingly, applying the infancy doctrine in the context of a parental waiver is, in our view, illogical and juxtaposes Tennessee’s recognition of a fit parent’s authority to make important family decisions with the legal presumption she is acting in her child’s best interests. Wadkins v. Wadkins, 2012 WL 6571044, at *5 (Tenn. Ct. App. Dec. 14, 2012).
Moreover, in light of the newly recognized fundamental right to privacy in parenting decisions, enforcing a liability waiver signed by a parent against her child does not conflict with a parent’s inability to settle her child’s existing tort claim, as Childress suggested. As one of the multitude of legal authorities points out, there is simply no reason to presume that the parent’s interests are in conflict with those of her child in the context of a pre-injury liability waiver as might be present in a post-injury context. See Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of A Minor's Future Claim, 68 Wash. L. Rev. 457, 474 (1993).
In summary, we believe the landscape in Tennessee has changed since Childress. Indeed, there are a number of public interests furthered by enforcement of minor waivers – the most basic of which being the public value of offering families affordable opportunities for their children to “learn valuable life skills” and to “work as a team” and to “exercise and develop coordination skills.” Zivich, 696 N.E.2d at 205. In any event, we believe these changes result in only one logical conclusion: a fit parent has the authority to waive her child’s prospective tort claims in a contract and her decision in that regard deserves the presumption by the courts that she does so with her child’s best interest in mind.