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The Parent/Child Waiver that Wasn’t (Entirely)

Fear not parents – it turns out the countless school, church, and athletic club waivers, shoved under your nose for your immediate and ever-lasting signature, actually have very little effect in the Commonwealth of Pennsylvania.  In Pennsylvania, the potential right of a child to bring a lawsuit for injuries suffered is considered the personal property of the child, and cannot be bargained away by the parent.  “But, what about when my child also has to sign,” you say?  As a minor in Pennsylvania, anyone under the age of 18 lacks the legal power to execute a binding legal contract, and therefore, has the power to declare any alleged agreement void and unenforceable.

This all begs the question, “why do these forms exist, then?”  The answer is probably two (or three) fold.  First, and most importantly, a parent, at least one over the age of 18, can bargain away their rights and by signing a waiver, the signing parent often gives up any rights they may have against third-parties.  This means that any claim a parent might normally have to lost wages or other expenses resulting from the care needed by an injured minor child, will have been waived if the signed waiver is found enforceable.

Second, the organization requesting the waiver may not be based in Pennsylvania and each of our 50 states has its own unique approach to the effect of parent/child waivers.  Therefore, if a child is engaging in a particularly dangerous activity in another state, a parent may want to inquire into that particular states’ laws on waivers. Lastly, parent/child waivers contain a certain symbolic importance.  As such, there is a signaling aspect to these types of waivers and it is possible that a court could use a signed waiver to impute some level of parental consent, at least in the case of inherently risky activities.

While the result in New Jersey is the same, the method for getting there is slightly different. Like 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 parens patriae is applied to such cases. Parens patriae 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. As such, 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.

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