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Linda Chalat
Linda Chalat
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Can You Waive Your Child’s Right to Sue?

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A parent’s signature does not waive the legal rights of a child who is hurt at play, the Michigan Supreme Court said Friday in a decision that has consequences for businesses, schools and other groups offering recreation activities for minors. The court said Michigan’s 133-year-old common law, which is law rooted in the court’s previous decisions, prevents a parent from entering a contract restricting the rights of a child.

The case involved a 5-year-old boy at a birthday party who broke his leg after jumping down an inflatable slide at Bounce Party, an indoor recreation center near Grand Rapids, Michigan.

Colorado recreation enthusiasts and parents have long faced waivers, see No Player Without Waiver.

And in June of 2002, the Colorado Supreme Court also held that a parent could not waive or release a minor’s prospective negligence claim, nor indemnify the operator against any liability the operator has to the minor in Cooper v. Aspen Skiing Co. et al.

David Cooper was 17 years old when, as part of his enrollment with the Aspen Valley Ski Club, he and his mother signed a contract, entitled "Aspen Valley Ski Club, Inc. Acknowledgment and Assumption of Risk and Release." A few months later, the boy was blinded when he lost control and crashed into a tree while training on a ski race course set by his coach. David, still a minor at the time of the accident, and his parents filed suit against the Aspen Valley Ski Club and his coach, alleging negligence and other claims.

In Cooper, the Colorado Court of Appeals held that a pre-injury release of liability signed by the minor and the parent barred not only the parent’s claim, but also the minor’s claim. The court based its decision on what it perceived as the fundamental liberty interest of parents in rearing their children and thus making decisions on their behalf. The state Supreme Court overruled the lower court ruling, holding that such a waiver violated public policy and created an unacceptable conflict between parent and child.

But, in the very next legislative session, the Colorado legislature acted to negate the holding. On May 14, 2003, Governor Owens signed Senate Bill 03-253, in which the General Assembly declared that Cooper "has not been adopted by the [G]eneral [A]ssembly and does not reflect the intent of the [G]eneral [A]ssembly or the public policy of this state."15 CRS § 13-22-107(3) now provides that "[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence."

So, at least in Colorado, you can sign way your child’s right to sue.

But, although the General Assembly has overruled Cooper, it still is important to be careful when dealing with waivers involving minors. Under Colorado law, a waiver will not provide "a shield against a claim for willful and wanton negligence."

The question is what constitutes willful and wanton conduct. The Tenth Circuit Court of Appeals defined it as “conduct which an actor realizes is highly hazardous and poses a strong probability of injury to another but nevertheless knowingly and voluntarily chooses to engage in." Applying this definition, the court in Rowan v. Vail Holdings, Inc. found there to be sufficient evidence for a claim of willful and wanton conduct to go to the jury. In Rowan, there previously had been several close calls by other skiers with an unprotected picnic deck near a race course before Rowan died by skiing into it.

But in Forman v. Brown, the Colorado Court of Appeals stated, "Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness." Applying this definition, the court found that when a river raft guide encouraged a rafter to jump in the river and swim, which resulted in injury to the rafter’s ankle, the conduct was not willful and wanton.