November 2009 - Parks & Recreation - 29

of Newton (Mass. 6/10/2002), the Massachusetts state supreme court upheld " the
validity of a release signed by the parent
of a minor child for the purpose of permitting her to engage in public school extracurricular sports activities. " In the opinion
of the state supreme court, " [t]he enforcement of the release is consistent with the
Commonwealth's policy of encouraging
athletic programs for youth and does not
contravene the responsibility that schools
have to protect their students. "
Our views with respect to the permissibility of requiring releases as a condition of voluntary participation in
extracurricular sports activities, and
the enforceability of releases signed
by parents on behalf of their children
for those purposes, are also consistent with and further the public policy of encouraging athletic programs
for the Commonwealth's youth...
To hold that releases of the type in
question here are unenforceable would
expose public schools, who offer many
of the extracurricular sports opportunities available to children, to financial
costs and risks that will inevitably lead
to the reduction of those programs.

Moreover, in the opinion of the court,
" the fundamental liberty interest of parents
in the rearing of their children " includes
their making " judgments and decisions
regarding risks to their children. "
The above described statute in Colorado
adopted similar reasoning in acknowledging a parent's fundamental right to make
decisions on behalf of their children, including the authority " to release a prospective negligence claim of the child against
certain persons and entities involved in
providing the opportunity to participate
in the activities. "
For Profit?
Statutes and court decisions which uphold the validity of parent/child waivers
recognize a public policy which favors a
measure of protection to those providing
youth with sport and recreation opportunities. In so doing, however, the courts tend
to make a significant distinction between
public or non-profit agencies and commercial providers. For example, state supreme

courts in New Jersey, Hojnowski v. Vans
Skate Park, 901 A.2d 381 (N.J. 7/17/2006),
and Florida, Kirton v. Fields, 997 So. 2d 349
(Fla. 12/11/2008), have recently held waivers unenforceable when executed by a parent on behalf of a child participating in a
commercial activity or using a commercial
recreation facility.
Similarly, in the case of Woodman v.
Kera, L.L.C., 280 Mich.App. 125 (8/12/2008),
given the for-profit nature of defendant's
business, " the Michigan appeals court reiterated the traditional rule and refused
to find a waiver by a parent on behalf of
their minor child valid. In the opinion of
the court, " [t]he Michigan Legislature is
the proper institution in which to make
such public policy determinations, not
the courts. " Accordingly, the appeals court
strongly encouraged the Michigan legislature " to evaluate this issue, including any
distinctions to be acknowledged regarding
treatment of pre-injury waivers involving
for-profit versus nonprofit organizations
or programs. "
In New York, state law (NY CLS Gen
Oblig § 5-326) provides that any agreement which exempt " pools, gymnasiums,
places of public amusement or recreation
and similar establishments from liability
for negligence " are " void as against public
policy and wholly unenforceable " when a
facility operator receives a fee or compensation for use of the facility. Meanwhile, in
Virginia, the state supreme court has held
that any such liability waivers and releases are prohibited " universally " and void
as against public policy, Hiett v. Lake Barcroft Community Association, 418 S.E.2d
894 (Va. 1992).
The validity and enforceability of waivers in a particular jurisdiction, including
parent/child waivers, is just one aspect of a
much larger issue, the availability of limited
immunity from liability for ordinary negligence in public and/or private recreation
and sports. In a number of jurisdictions,
including Virginia, various laws (e.g. governmental immunity statutes and state recreational use statutes) already exist which
provide public and/or private entities with
the same level of limited immunity available in a valid and enforceable waiver, i.e.,
no liability for ordinary negligence, only
gross negligence.
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