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.”