Liability waivers

Liability waivers – also known as liability releases or “exculpatory contracts” – are almost omnipresent these days. They’re tucked into sign-up forms, on permission slips, in fine print on the backs of tickets, and in the “terms and conditions” on our favorite websites.

As explained in a previous blog, Liability Releases And Waivers, these liability releases are often enforceable in New Hampshire (and most other states). This is true whether someone reads the actual text of the waiver or not. Thus, if you are injured due to a business’s negligence (or even gross negligence), you may be completely barred from a claim or lawsuit if a waiver was signed before the injury.

That comes as a surprise to many people. But courts have concluded that, excluding rare situations, customers have a choice: they can simply walk away from an activity if they don’t wish to sign a liability release. While that is a somewhat impractical legal fiction, it remains the current law of the land.

But what about liability releases that target minor children? As a preliminary matter, it is an established legal principle that contracts (including releases) signed by minors themselves are not enforceable. To get around that, however, businesses/institutions now require parents to sign waivers on their children’s behalf. This tactic will be familiar to any mom or dad who has signed a permission slip for a field trip, or a waiver at a recreational facility like a horse stable, amusement park, or trampoline park.

Courts around the country are divided about whether so-called “parental” liability releases are enforceable. That said, the vast majority of courts considering the issue have refused to enforce said releases. See Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010) (collecting cases). By this author’s count, courts in at least sixteen states have ruled that parents may not waive their children’s claims pre-injury. That compares to approximately seven states upholding parental waivers (significantly, almost all of those cases involved not-for-profits rather than commercial enterprises. This difference is significant from a public policy perspective).

The New Hampshire Supreme Court has never considered whether parental liability releases are enforceable. However, the Court continues to state that liability releases are generally prohibited and construed strictly. Additionally, the Supreme Court has held that, as a matter of common law, parents may not release their children’s claims after an injury (i.e., in a settlement agreement) without court approval. See Roberts v. Hillsborough Mills, 85 N.H. 517, 519 (1932); see also RSA 464-A:42 (codification of this rule).

Current State of New Hampshire Law on Parental Liability Releases

Although the New Hampshire Supreme Court has not weighed in, at least three courts have decided this issue while applying New Hampshire law.

The first was decided by the United States District Court for the District of New Hampshire in 1997. In that case, entitled McKenna v. American Institute for Foreign Study Scholarship Foundation, Judge Barbadoro concluded that a liability release signed by a parent was not enforceable. The federal decision cited to the Roberts case mentioned above. The court reasoned that “since a parent may not release a child’s cause of action post-injury without court approval, it makes little sense to conclude that the parent should have that authority before the injury occurs.” The McKenna decision is not indexed by major legal databases, but it is available on the federal court’s website.

The next decision came from the federal District Court in Massachusetts in 2014, in the case of Harrigan v. New England Dragway, Inc., 2014 U.S. LEXIS 194576 (D. Mass. 2014). In that case, a minor was injured on a motorcross track owned and operated by a for-profit corporation based in Epping, New Hampshire. The defendant moved for summary judgment on the basis of a liability released signed by the minor’s parents. Sitting in diversity jurisdiction, the Massachusetts court applied New Hampshire law to the defendant’s motion for summary judgment.

The Massachusetts federal court concluded that enforcing the liability release would violate New Hampshire public policy. The court put particular emphasis on the doctrine of parens patriae, which refers to the state’s power to protect children within its borders. As the Massachusetts court noted, the New Hampshire Supreme Court has repeatedly recognized the viability of the parens patriae doctrine.

The most recent decision is a Superior Court decision from the Hillsborough County Superior Court in Nashua: Perry v. Crotched Mountain, 2017 N.H. Super. LEXIS 32 (2017). That case was handled by this office. It involved a chair lift accident at Crotched Mountain ski area. A young girl was seriously injured. The defendant moved to dismiss the case based on a liability release contained in a season’s ski pass signed by the child’s mother.

The Superior Court concluded that, under New Hampshire law, parents cannot waive their children’s legal rights without court approval. The court reached this conclusion in part based on the Roberts decision mentioned above. The decision rested on principles of contract and agency law rather than considerations of public policy. However, the court also noted that the liability release likely violated New Hampshire public policy. Finally, the court determined that an indemnification clause, purporting to force the mother to indemnify the defendant for the child’s claim, was against public policy.

Conclusion

The three decisions above demonstrate a developing consensus among New Hampshire courts on this issue. The three decisions come from three different courts, at both the state and federal level, and span a period of twenty years.

In the author’s opinion, these courts were correct to adhere to the majority view. New Hampshire has a long history of discouraging so-called exculpatory contracts, rightfully recognizing that large businesses should not be able to immunize themselves from their own negligent conduct. While courts may begrudgingly allow adults to sign away their rights, allowing a third party to sign away rights on behalf of an innocent child is a step too far. The common law of New Hampshire does not allow it, and the public policy of the state discourages it.

To learn more, read “Mommy, What’s an Exculpatory Contract?: Parental Liability Releases in New Hampshire” by Israel F. Piedra, which was recently published in the NH Trial Bar News.

If you have a personal injury matter you would like to discuss with the experienced attorneys at Welts, White & Fontaine, PC, please call us at (603) 883-0797 or contact us here. We can help you evaluate whether you have a viable claim, and have the tools and knowledge necessary to obtain a favorable settlement or verdict. We handle most personal injury matters on a contingency fee basis. We are happy to offer you a free consultation.

Author: Israel F. Piedra

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.