Waivers of Liability in Pennsylvania and New Jersey for Sports, School and Recreation Activities and Events
Parents frequently sign waivers of liability so that their children can participate in summer camps, school functions, sports and other recreation activities. In some instances, those waivers will be signed by both the parent and the minor child. In other instances, only the parent will sign the waiver.
Waivers often contain operative language which release the camp/function/program from all liability, even death. A common waiver will include language like the following:
In consideration for my child being permitted to participate in the program, related events and activities, the undersigned acknowledges and agrees that as the natural parent and/or as the legally authorized guardian, do hereby for myself, my spouse, my child agree not to sue and hereby release, waive, discharge, hold harmless and indemnify and forever defend the program administrator, for any and all known or unknown, foreseen or unforeseen, bodily or personal injuries, death and permanent injury, illnesses, damage to property, or other losses, and any consequences thereof, including expenses, costs, and attorney's fees, as may be sustained by my child or me arising out of or in any way associated with my child's participation in the given program, travel incident thereto, whether by negligence or not to the fullest extent permitted by law. The risk of serious injury to my child from these activities does exist including the potential for permanent disability and death. I understand and fully acknowledge that my child's participation in these activities is solely at our own risk and I assume full responsibility.
Then when a child is injured at the given camp, function or program, the responsible party typically raises the waiver as a defense to the case. The question then becomes whether the waiver is enforced against the child and/or the parent who signed the form.
A. Pennsylvania Law In general, when a child is injured, there are two separate and distinct causes of action. First, the child of course, has a cause of action against the responsible party and second, the parents have a cause of action for medical expenses and loss of the minor's services.
Pennsylvania courts generally apply contract principles to cases involving a waiver of liability signed by either the parent or the child or both. Thus, under Pennsylvania law, if the parent signs the waiver, that waiver will be applied as to the parent, barring the parent's cause of action. Absent fraud, mistake or duress, the waiver of liability will be upheld against the parent.
However, Pennsylvania law is clear that a parent does not have the authority to release their minor child's potential claims against others, merely because of the parental relationship. Multiple Pennsylvania court cases have upheld this rule. Thus, when a parent signs a waiver on behalf of their minor child, that waiver does not exculpate the responsible party in the event of injury to the child. The minor child's claim survives and the waiver of liability is stricken.
In some situations, a minor child may actually sign the waiver of liability. In that situation, Pennsylvania courts apply usual contract law principles. Under Pennsylvania law, minors are not considered competent to enter into valid contracts, except for contracts of necessity (rent, medical needs, etc.). However, contracts with minors are not void as a matter of law, but are voidable-meaning they can be disaffirmed by the minor, thus rendering the contract null and void. A minor's act of suing a responsible party is an obvious act of disaffirmance of the waiver and therefore the minor will be able to maintain a suit against the responsible party.
B. New Jersey Law New Jersey law is similar to Pennsylvania law in result, but different in the approach. Like in Pennsylvania, New Jersey law does not apply these kinds of waivers of liability against a minor child. However, the rationale is not a contract law based analysis. Rather, in New Jersey, the doctrine of parenspatriae is applied to such cases. Parenspatriae is a public policy consideration in which the state is viewed as the protector of the interests of those who cannot care for themselves-i.e., minors. With this doctrine in mind, New Jersey law does not allow these waivers to bar a minor's claim for personal injuries against commercial recreational facilities. However, whether these waivers may be applied to non-profit, volunteer or other community-based programs and facilities remains to be seen.
While these kinds of waivers are not upheld as to the initial question of whether a minor can sue a commercial facility, certain parts can be upheld, such as an arbitration agreement provision. For example, a mother signs a waiver on behalf of her minor child to participate in a commercial recreation activity and the waiver includes a provision agreeing to a mandatory arbitration. If the child is then injured, the waiver will not bar the child's claim against the facility, but will be upheld to force the child's case into the agreed upon arbitration. Again, New Jersey does not follow Pennsylvania's application of contract law principles, but views these waiver situations purely from a public policy standpoint.
If your child was injured at a sports, school or other recreation event, it is vital that you speak to a qualified, experienced New Jersey and Pennsylvania personal injury lawyer. The team at White and Williams has handled many accident cases involving injuries to children and has achieved much success. We serve accident victims in Pennsylvania and New Jersey and always offer a free consultation. 1-877-944-8396