For landowners who allow minor children to come onto their property and partake in activities like hunting, swimming, fishing, or riding ATVs, there is an interesting question that remains unanswered by the Texas Supreme Court: Are liability waivers signed by a parent on behalf of a minor child enforceable in Texas?
The Texas Supreme Court has never directly addressed this issue. There are however, a handful of lower court cases indicating these waivers may not be enforceable.
Landowners who allow minor children to come onto their property for recreational activities often worry about potential liability exposure in the event the child is injured. Obtaining signed liability waivers is one method of potentially preventing liability in the event an injury does occur. Generally, Texas courts are willing to enforce a validly drafted liability waiver and will allow such waivers to serve as a defense to a negligence claim. In a very general sense, these waivers essentially state that the participant agrees to participate in the activity, the participant understands there are risks associated with the activity, and the participant agrees not to hold the landowner liable for negligence in the event of an injury.
The question, then, is whether these types of waivers are enforceable when the injured party is a minor child and the waiver was signed by a parent or legal guardian.
Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App. – Houston [14th Dist.] 1993).
The first Texas case to address this issue was a 1993 decision by the 14th District Court of Appeals in Houston in Munoz v. II Jaz Inc. In that case, a nine-year-old girl was injured when she fell off a ride at the defendant’s amusement park. A waiver was signed on the child’s behalf. The child’s parents filed suit against the amusement park, who raised several defenses, including the existence of the liability waiver. The trial court dismissed the case on summary judgment based upon the waiver. The parents appealed that decision.
The appellate court reversed on two issues, one of which is relevant to our discussion: Can a parent waive a minor child’s right to sue for personal injury damages? The court held that such waivers were not enforceable based on Texas statute and public policy.
First, the court looked to Texas Family Code Section 12.04(7), which grants parents the right to make decisions of substantial legal significance concerning the child. Relying on precedent construing this section as not allowing a parent to agree to reduce the amount of child support because that was a benefit to the child, the court determined that this statute “does not give parents the power to waive a child’s cause of action for personal injuries” because doing so would “be against the public policy to protect minor children.” Additionally, the court cited cases from other states including New Jersey and Connecticut holding that liability waivers signed by parents on behalf of minors were not enforceable.
Paz v. Life Time Fitness, 757 F. Supp. 2d 658 (S.D. Tex. 2010).
In 2010, the United States District Court for the Southern District of Texas faced this same issue in Paz v. Life Time Fitness. In that case, a child was injured while attending a summer day camp at a fitness center in Sugarland, TX. The child’s mother signed a liability waiver when she enrolled the child in the camp. The federal court noted that since the Texas Supreme Court had never ruled on this issue, the federal court would make an “Erie prediction,” which essentially predicts how the Texas Supreme Court would rule on this issue were it before the justices. Based on the decision in Munoz as well as case law from other jurisdictions, the federal court held that a pre-injury release signed by a parent is not enforceable to release the defendant from all liability for the child’s injury. Interestingly, the federal court opinion did note that this rule was applicable where the defendant was a commercial enterprise but noted that the outcome may be different in the event the defendants were a nonprofit community or school program.
McClure v. Life Time Fitness, No. Civ. H-13-1794, 2014 WL 6851942, at *5 (S.D. Tex. Dec. 3, 2014).
In 2014, the United States District Court for the Southern District of Texas issued an unpublished opinion reaching the same conclusion after relying on both Munoz and Paz. In McClure, a child was injured in the childcare area at Life Time Fitness in Humble, Texas. His mother signed a release when she joined the fitness center.
So, if a landowner wants to allow minors to come onto his or her property for a recreational purpose, how can he or she protect themselves?
First, the best step a landowner can take to protect themselves from any situation occurring on the property is to have liability insurance. I cannot over-emphasize the importance of having insurance if you are a landowner or an agricultural tenant. Keep in mind that insurance not only provides coverage up to the policy limits, but also provides a defense to help a landowner navigate a lawsuit. Also, insurance would apply to any covered claim regardless of whether a waiver was obtained and regardless of whether Texas courts found the waiver to be valid.
Second, landowners allowing minor children to engage in recreational activities may want to consider requiring adult supervision. Further, some leases I have seen have required not only an adult supervisor, but provided that the supervisor would be liable for any injury and would indemnify the landowner. There has not been a Texas court decision addressing this type of approach, but it may be something to consider. In order for this type of agreement to be arguably enforceable, it would need to be signed by both the injured child’s parent as well as the adult supervisor.
Third, the Texas AgriTourism Act is likely the best bet for a Texas landowner to enforce a liability waiver against a minor child. Basically, the Act provides that a landowner is not liable for an injury occurring on agricultural land if the participant was engaged in an agricultural or educational activity if the landowner hangs up a sign or obtains a specific waiver. [For more detailed info on the Act, click here.] The AgriTourism Act statute expressly states that the waiver can be signed by the “participant or their parent, guardian or managing conservator.” This statutory language seems to provide a good basis to believe the Texas Legislature intended to allow parents signing this specific waiver under this Act to waive liability for minor children. Do note, however, that there have been no cases challenging this provision to date.
Finally, landowners should still consider obtaining a general liability waiver signed by parents on behalf of minor children because the Texas Supreme Court has never ruled on this issue. None of the three cases addressing this issue are binding on the Texas Supreme Court. The Court could determine these cases were wrongly decided and hold such waivers to be enforceable in the future. Until this question is answered, obtaining a waiver signed by a parent on behalf of a minor could be a potential defense.