Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
Note
1. Parental Waivers. Does your assessment of the considerations underlying the assumption
of the risk doctrine change when the person who signed a waiver promising to assume the risk is
not the injured party, but a parent or guardian? Should a parent’s assumption of the risk via
waiver agreement be effective when they are claiming to assume the risk for their child?
When presented with these questions, most states void the agreement as being against
public policyeither by applying the Tunkl factors laid out in Dalury, or by noting the special
interests of the state in protecting minors. In Cooper v. Aspen Skiing, for example, the Colorado
Supreme Court held that a waiver signed by a parent when signing her 17-year old son up for ski
racing instruction was void as against public policy. 48 P.3d 1229 (Colo. 2002). “In the tort
context especially,” the court said, “a minor should be afforded protection not only from his own
improvident decision to release his possible prospective claims . . . but also from unwise decisions
made on his behalf by parents who are routinely asked to release their child’s claims for liability.”
Id. at 1234.
A few states permit parental waivers. The Maryland Court of Appeals (that state’s highest
court), for instance, held a parent’s waiver of their child’s right to sue enforceable, noting that
parents are entrusted with a wide range of decisions touching directly on their child’s safety. BJ’s
Wholesale Club v. Rosen, 80 A.3d 345 (Md. 2013). And in 2003the year after the Colorado
Supreme Court had held such waivers unenforceable in Aspen Skiingthe Colorado legislature
passed a law permitting parents to waive their child’s right to sue. COLO. REV. STAT. ANN. § 12-
22-107.
293