Are Liability Waivers Effective Against Minors?

Maybe you own a paintball arena. Maybe you are thinking about installing a zip line in your back yard. Perhaps you have something as innocuous as a pool. You want to allow others to simulate military strikes in your arena, fly across your lawn into the sandbox on your zip line, and perfect the cannonball in your pool. But you are concerned that if someone gets hurt, you’ll get sued.

And that’s a legitimate concern.

Long ago this problem found its solution in liability waivers. Whether you’re going skydiving, running a marathon, or riding an electric bull at the fair, you may be asked to sign a waiver, which is a legal mechanism for assuming the risk of the dangers inherent in the activity and excusing another party for injuries and losses that occur because of their negligence.

These waivers are enforceable pursuant to the laws that apply to the interpretation and enforcement of ordinary contracts. Thus, where the contract is otherwise enforceable, the waiver will be effective if injuries are caused by the negligence of those against whom you are waiving your claim. Waivers are not effective, however, against claims for gross negligence (not just careless actions, but reckless ones).

But what about children? The rule in Nevada is that, subject to certain limited exceptions, contracts are not enforceable against minors, which in Nevada, are persons younger than 18 who are not legally emancipated.

Nevada does not have a law or case that specifically discusses whether a waiver signed by a minor is enforceable, so we have to presume that Nevada will enforce a waiver like it enforces other contracts and refuse to enforce them against minors.

But what if the parent signs the waiver for the kids? Is it enforceable then?

Nevada has not decided this issue, either, but many other states have. In Utah, for example, the answer is no—parents cannot waive risk on behalf of their kids: “[s]ince a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has authority to release a child’s cause of action prior to an injury.”[1. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶ 10, 37 P.3d 1062, 1066. Utah does, however, have a specific statute that says that for horseback riding, parents can sign waivers for their minor children. SeeUtah Code § 78B-4-203.]

Most states that have decided this issue agree that a waiver that a parent signs on behalf of a minor child is not enforceable. Six states, however, will enforce such waivers (California, Florida, Massachusetts, North Dakota, Ohio and Wisconsin).

Nevada generally does not enforce contracts against minors, but where it must decide an issue of first impression (one for which there is no on-point law), it often follows California’s lead. So it is not clear how Nevada would decide this issue.

If you are thinking about conducting some sort of activity that has inherent risks, regardless of whether you are in a state that will enforce a liability waiver, creating a waiver is still a good idea. It should give notice to the participants of the risks, educate them as to the rules and guidelines they have to follow for safety, and agree to waive any claims they have against you for injuries. Even if it is not enforceable, it could be a deterrent to frivolous lawsuits.

At the same time, you should do everything you can to make your activity safe. And you should purchase insurance sufficient to cover any injuries that may occur.

If you have any questions, consult a knowledgeable attorney.

 

Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or zach@p2lawyers.com.