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Kentucky Supreme Court Strikes Down Waiver of Claims Between Child and For-Profit Business

Last Thursday, the Kentucky Supreme Court issued an opinion addressing whether a waiver, signed by a parent on behalf of a minor child, would be enforceable. Restricting its analysis to a situation which the party seeking the waiver is a for-profit business enterprise, the court answered “no.” In Re: Miller v. House of Boom Kentucky, LLC, ___ S.W.3d ___, No. 2018-SC-000625-CL, 2019 WL 2462697 (Ky. June 13, 2019).

The House of Boom Kentucky, LLC is described as a “for-profit trampoline park” in Louisville. In August, 2015 Kathy Miller, on behalf of her 11-year-old daughter E.M. and several of her friends, purchased tickets for House of Boom. Before purchasing those tickets, Kathy agreed to an extensive waiver of any claims that might be made by either herself or her minor children/wards that might arise “as a result of participating in any of the ACTIVITIES in or about the premises.” E.M. was injured at the House of Boom when “another girl jumped off a three-foot ledge and landed on E.M’s ankle, causing it to break.” Kathy Miller then brought suit against House of Boom, and it moved for summary judgment on the basis of the waiver. That action was pending in the Federal District Court for the Western District of Kentucky, and it asked the Kentucky Supreme Court for clarification as to what is Kentucky law on the validity of the waiver. Specifically, the Kentucky Supreme Court said it was considering:

“[W]hether a parent has the authority to sign a pre-injury exculpatory agreement on behalf of her child, thus terminating the child’s potential right to compensation for an injury occurring while participating in activities sponsored by a for-profit company.”

The court would answer “no.” Reviewing Kentucky law including a case from 1905, the Court found the general rule of Kentucky to be that, absent the appointment as a guardian by the District Court, a parent does not in that capacity have the right to on behalf of a minor child waive a minor child’s right to recover for an injury. Rather, while by statute parents have control over the custody, nurturing and education of their children, those rights have “never abrogated the traditional common law view that parents have no authority to enter into contracts on behalf of their children when dealing with a child’s property rights, prior to be appointed guardian by a District Court.”

Shifting the risk to the for-profit venture, the Kentucky Supreme Court wrote:

“A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment.”

The Court went on to note that, if a waiver were enforceable, the venture would have a little incentive to take all reasonable safety precautions.

The Court went out of its way to note that its opinion is restricted to for-profit ventures. In a footnote, it observed “While a slight majority of jurisdictions support enforceability in the context of a non-profit recreational activity, non-profits and volunteer youth sports raise different public policy concerns which we need not address in this opinion today.” As such, while this opinion is not directly applicable to non-profit ventures, the Court has not indicated whether and to what degree would, with respect to those activities, adopt a different rule.

Those running entertainment and other venues will still want to seek injury waivers.  There is nothing about this decision that limits the effectiveness of a waiver executed by an adult.  Likewise, the waiver may cut-off certain claims that a parent might make in connection with a child’s injury.  Just be aware that a waiver executed on behalf of a child will not be effective to protect against all claims.