Are Liability Waivers Binding When Signed by Children’s Party Host?
May 24, 2021 | Written by: | Share
As many parents know, recreational establishments that cater to children’s group outings, such as skate parks, roller rinks, and amusement parks, may request the adult host of the children’s group or person reserving the event to sign a waiver of liability or lawsuit agreement on behalf of all participants. Often the waiver will require arbitration instead of a lawsuit against the establishment for claims of, or on behalf of, a participating child arising from injury(ies) sustained during the event. The waiver may also include a certification that the person executing the waiver has the authority to do so.
Despite the written waiver and certification of authority, the waiver is not binding upon a participating child unless the person signing the waiver had actual or apparent authority from the child’s parent or guardian to waive the right of the participating child making such claim. Actual authority could consist of a written limited power of attorney granted by the child’s parent or legal guardian. Apparent authority arises from the actions of the person allegedly granting the authority such that a third party, i.e., the establishment, reasonably could rely on the host’s assertion of authorization. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290 (App. Div. 1999). For example, the establishment could ask the host to call the parent or guardian for confirmation, could make further inquiry of the host how the parent or guardian was aware of and authorized the waiver, or could include a waiver requirement in prominent bold lettering on the establishment’s website and event reservation forms.
In Gayles v. Sky Zone Trampoline Park, __N.J. Super ___ (App. Div. Approved 05-21-2021), the Appellate Division addressed such a waiver signed by a parent (Ms. Tongol) hosting her son’s birthday party with several neighborhood friends of her son at the trampoline park. The written agreement waived the right of each named participating child to file a lawsuit for injuries sustained at the park and required arbitration of those claims. The waiver included other limitations that may not have been legal and that are not relevant herein. The waiver included a certification the host had the authority to make the waiver, was responsible for the participating group of minors whose names, addresses, and contact information was provided, and that the host waived each participating child’s right to a jury trial and agreed to pay a $5000.00 penalty if such suit were filed.
Ms. Gayles, as Guardian ad Litem, filed a negligence suit against Sky Zone for injuries sustained by her son during the event. Sky Zone filed various defenses and moved to dismiss the Complaint based upon the waiver of lawsuit agreement. The trial court denied Sky Zone’s motion on the basis that the waiver agreement was void and the host did not have the actual or apparent authority to waive the child’s (Gayles’) right to a jury trial. The trial court denied Sky Zone’s motion for reconsideration and denied Sky Zone’s motion for an involuntary dismissal at trial. Sky Zone appealed all denials, asserting Tongol had the apparent authority to waive Gayles’ trial rights.
The Appellate Division noted that Tongol did not have actual authority since there was no written power of attorney or similar agreement. The Appellate Division agreed with the Trial Court that the waiver agreement did not convey or memorialize the authority to waive Gayle’s litigation rights. The Appellate Court ruled that Sky Zone could not reasonably rely upon Tongol’s signed certification of authority since Tongol signed as the authorized guardian of numerous children from separate households, rendering the assertion facially unrealistic and insufficient. The Appellate Court noted “[Gayles] engaged in no "expressive conduct," and no direct or "indirect . . . communication" with [Sky Zone]. There was no relevant "practice" or pattern of conduct between plaintiff [Gayles and defendant [Sky Zone]. Defendant cannot rely solely on its own general admission procedure to support the reasonableness of its belief that Tongol had authority to act for plaintiff and execute the Agreement waiving her [Gayles] and her son's significant rights” Gayles v. Sky Zone, supra.
The court also noted that Sky Zone employees took no action to deduce the validity of Tongol’s authority to waive the children’s rights and there was no proof Ms. Gayles knew such a waiver was a requirement for her child to participate.
It is likely that many waivers currently in use will similarly fail to force participating children to forego significant legal rights. However, with the State’s COVID emergency restrictions lessening and summer arriving, entertainment/amusement venues will likely revise their waiver agreements and requirements based upon Gayles to ensure the person signing such waivers has the proper authorization to do so. Parents and guardians seeking to host such children’s events should discuss the potential waiver and any website or application waiver requirement with the parents/guardians of the invited children to avoid surprises and disputes in the event the waiver is used in defense of an invited child’s injury claim.
Jacob A. Papay, Jr. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of construction defect claims, construction injury claims, first-party insurer claims, insurance coverage disputes, subrogation, provider health care law, commercial law, defense of professional negligence, and public entity general liability. He represents numerous insurers, Third Party Administrators, medical groups, and businesses, and he has successfully defended public entity officials and employers in wrongful death, discrimination, excessive force and other civil rights claims. In addition, Mr. Papay represents small businesses in mergers, acquisitions, trade secrets, employment and unfair trade practice claims.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.