Why use them?
I read 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. The article also includes innovative provisions that should be inserted into the language of the waivers/releases.
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 the minor’s parent(s) waiving rights on their behalf.
Below are 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.
Find out if a waiver/release is worth the paper it’s written on.