As parents, we are expected to always act in the best interest of our children. Since they are not adults, they need us to act as their representative when it comes to their safety and protecting their rights. It is not uncommon for parents to have to sign waivers in order for children to participate in certain recreational activities; however, are these documents legally binding so that no protection needs to be afforded to your child while they participate?
In New Jersey it has been established that while a parent can sign these waivers and be contractually bound if a) the release was signed after an injury occurred or b) with regards to venue of the case (in other words the parent can give up the child’s right to a jury trial and to only have the option of binding arbitration). They cannot, however, give up the child’s rights to pursue a tort claim in the event that they are injured after signing the waiver.
In Hojnowski v. Vans Skate Park , 187 N.J. 323, 901 A.2d 381 (N.J. 2006) the court ruled that:
The majority determined that a pre-injury release of liability executed by a parent on behalf of a minor child violates public policy and is therefore unenforceable…We affirm the majority and hold that although a parent may agree to bind a minor child to an arbitration provision, which in essence constitutes a choice of forum, a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility. Pursuant to our parens patriae duty to protect the best interests of the child, we will not enforce such a release in the context of this case.
In the decision, the court explained that waivers giving up the rights of a minor to pursue a tort action are a violation of public policy. They explained that pre-injury waivers of liability are a violation because they promote negligent or tortious conduct on the part of the entity enforcing the waiver of its responsibility to exercise due care. In other words, a waiver cannot stand in the place of safe practices by the entity enforcing the waiver.
In Hojnowski, a minor child was injured at a skate park as the result of being forced off a ramp by an aggressive skater. A waiver was signed by the minor’s mother. The waiver, however, did not absolve the skate park of its responsibility to provide a safe environment free of hazards, they were still required to exercise due care.
The park had been notified by the victim’s parents about the aggressive skater prior to the act that led to the boy’s injury. They did not take any action to remove the danger and thus did not exercise due care.
What This Means for You and Your Child
It has been clearly established in New Jersey case law that a parent cannot give up the child’s rights to a tort action. This means that whenever you sign a waiver that claims to absolve an entity from liability in the case of injury, you are most likely binding the child to a venue for a claim but not giving up their rights to compensation.
You should always carefully read any document that would strip your civil rights before signing it. An informed decision needs to be made before signing binding documents such as waivers so that you do not jeopardize your child’s future rights to a tort action in the event of an unforeseeable injury.
If your child has been injured and you signed a release form, call the New Jersey child injury attorneys at Console & Associates P.C.. We will go over the waiver with you and explain what your child’s rights and options are. Call us today at (833) 690-4940, the call and advice are always free.