Why Use Waivers If State Does Not Enforce Parental Waivers?

I just came across an interesting article that outlines why minor waiver / release agreements should be used even if a particular state’s court system has ruled against their enforceability as well as innovative provisions that should be inserted into the language.

A minor is not considered to be a legally competent party to enter into a binding contract such as a waiver / release agreement. Therefore, their enforceability is dependent upon their parent(s) waiving their right on their behalf.

Reasons why minor waiver / release agreements should be used even if a court in a particular state has ruled that the parental waiver is not enforceable:

* The case law of the state may change.

* The waiver / release may have a psychological impact to deter litigation.

* The organization requiring the waiver / release will be no worse off even if it is not enforceable.

* The risk warning provision in the waiver / release may provide evidence for an assumption or risk defense.

Special wording that may make the waiver / release stronger:

* A provision that the governing substantive law will be based on a state where parental waivers are upheld.

* A parental indemnification agreement where the parents agree to indemnify the sports organization for legal defense and damages that are paid on behalf of the injured minor.

Source: Risk & Insurance, Victor Vepauskas, November 2010

Business Liability Waivers Affecting Children Not Allowed In FL

 “The Florida Supreme Court has ruled that a parent can’t execute an injury liability waiver for a minor child when the liability release involves participation in a commercial, as opposed to community or nonprofit, activity.”

Are Electronic Signatures Accepted on Waiver Release Forms?

Actual Client Question:

We were wondering if you require hard signatures on the release of liability form, player parent contract, code of ethics? We do registration on line to where everyone has their own password to login to their childs registration, in which we have \”I Accept\” buttons.  In the past we have had the parents click those buttons and then we have printed the forms and had the parents come to another registration to supply a hard signature. Do you require a hard signature for Insurance purposes or would the trigger button hold up in the event of a claim? What is the guideline for electronic signatures?

 Of course, it goes without saying that the waiver / releases must be properly worded to be given weight by a court. So many of them violate the basic principles of contract law. A copy of a sample waiver /release can be found under the Risk Management section of our website at www.sadlersports.com/riskmanagement.

John Sadler