Personal injury or liability waivers that parents sign for children are all the rage these days. Understandably, business owners are trying to avoid liability for child injuries that happen on business property.
Are these parental waivers enforceable in Utah? The answer is easy – no. (There’s one exception for equine activities.)
The Utah Supreme Court has made it clear that when a child is injured due to the negligence of another, a parent cannot waive that child’s right to recover damages. Below is a summary of the latest Utah law on personal injury waivers for children.
A personal injury or liability waiver (sometimes referred to as a “release”) is a document that waives legal liability for injuries that happen because of the business’s negligence. The customer signs a form that states, in exchange for using the business’s service, the customer agrees to not make an insurance claim for injuries.
Trampoline parks, bounce houses, ziplines, indoor rock-climbing locations, and pools are common examples of businesses that require a parental waiver or release to enter the premises. It’s no surprise that businesses that have the most injuries want to avoid liability.
Below is an example of common language you’ll see in a parental personal injury waiver or release form. We have bolded some of the key language in this waiver and release.
“ACCEPTANCE OF RISKS AND RESPONSIBILITY: In consideration of my child being allowed to participate in this activity, I fully and voluntarily accept all risks that may arise from direct or indirect involvement with this activity, which risks may result in loss or damage to property or injury, illness, or death to myself or others. I understand that these risks may be known or unknown, identified or unidentified, and anticipated or unanticipated. I also acknowledge that loss or damage to property or injury, illness, or death to Participant or others may result from the negligent acts of Activity participants or organizers (including Utah State University, its agents, officers, employees, devisees and assigns and the Board of Regents of the State of Utah (hereafter collectively, “USU”)). I voluntarily accept the risks and dangers associated with the Activity. I agree that I will be personally liable for any damages that occur as a result of Participant’s participation in the Activity. I agree to adhere, or cause Participant if a minor to adhere, to appropriate safety standards to ensure the safety of Participant, others, and associated property during participation in the Activity. I further understand and agree that my child’s participation may be discontinued if, at the sole discretion of the Activity Supervisor, my child’s behavior is considered hazardous or disruptive to the other participants.
RELEASE: I hereby voluntarily release and forever discharge USU from any and all liability, claims, demands, attorney fees, actions, or rights of action which are related to, arise out of, or are in any way connected with Participant’s participation in the Activity, including specifically, but not limited to, the negligent acts or omissions of USU for any and all bodily injury, death, illness, disability, or damage to myself or to my property. I agree that USU is not liable for risks, negligent acts, or any other liability that may arise in connection with Participant’s participation in the Activity.” The clear aim of this release is to avoid liability for a customer’s injuries. The “participant” is agreeing to accept all the risks in return for being able to participate in the activity. For example, in exchange for using Utah State University’s indoor swimming pool, the parent is supposedly waiving the right to sue USU if her child is injured or drowns. Even if the lifeguard falls asleep or is distracted on a cell phone, the child can’t get compensated.”USU Release
The clear aim of this release is to avoid liability for a customer’s injuries. The “participant” is agreeing to accept all the risks in return for being able to participate in the activity. For example, in exchange for using Utah State University’s indoor swimming pool, the parent is supposedly waiving the right to sue USU if her child is injured or drowns. Even if the lifeguard falls asleep or is distracted on a cell phone, the child can’t get compensated.
The most recent Utah ruling came in Rutherford v. Talisker Canyon Finance Co., LLC, 2019. The Utah Supreme Court confirmed that parental waivers are unenforceable. (There is one exception for equine activities.)
In Rutherford, ten-year old Levi Rutherford was a minor child. He was snow skiing at The Canyons ski resort in Utah. Levi skied into a pile of machine-made snow that was wet, icy, and thick. Levi skied into the pile of snow, fell, and was seriously injured.
Levi’s dad signed a waiver and release on behalf of Levi, a child. The release said that Levi agreed to accept all risk and not sue the ski resort for negligence.
The Utah Supreme Court ruled that the waiver is not valid. Levi’s dad cannot waive his child’s claims for negligence. The court said it’s against public policy to allow a parent to waive the child’s rights for recovery. So, what’s the bottom-line? If your child is injured, and you’ve signed a waiver, you can still get compensated from the negligent business for the child’s injuries.
We can think of two reasons:
In speaking to the first bullet point, Utah law is not always trending news on social media or local news channels. Unless you are a business or parent that’s dealt with a child injury claim (or the neighbor of a personal injury lawyer), there’s less of a reason you’d know the law.
Regarding the second bullet point, parents that have knowingly signed a release for their child are less likely to make an injury claim. Parents just assume that there’s no way around the personal injury or liability waiver. Consequently, they just let it go. Businesses figure they can benefit from the parent’s ignorance, so why not make them sign it?
Take responsibility for your negligence. Don’t seek waivers from children. Train your employees properly on safety. Make sure your equipment is safe. Continually check the equipment for defects. If your paying customer is injured because you messed up, reimburse them for their damages. Don’t seek to avoid liability for your negligence.
In the event you reasonably removed dangerous conditions, and your employees acted reasonably, then defend your position. Explain to the customer why you were not negligent and did not cause his or her injury.
If you can avoid it, avoid businesses that require a release or waiver for your child.
If it’s unavoidable, make sure the location is safe. Point out unsafe conditions to an employee and to your child. Watch your child. Make sure they aren’t doing anything that could be unsafe. Explain the rules to your child, and make sure they are following the rules.
In the event your child is injured, talk to an attorney. The waiver you signed is unenforceable. If the business was negligent, your child is entitled to compensation.
In most personal injury cases, you have 4 years to bring a claim for personal injuries before its barred. This is the statute of limitations period. (Go to this link for specific details on statute of limitations periods in Utah.) For children, the 4-year clock does not start ticking until the child turns 18 years old. For example, Susan is 10 years old when jumping at a bounce house. She jumps onto a trampoline, and the springs break. Susan breaks both legs from hitting the ground. Susan has until she is 22 years old to sue the bounce house for here injuries. Once she turns 18 years old, the 4-year clock starts ticking. So, she has until she is 22 years old to bring her injury claim.