RPLR REPORT # 2000-25
COLORADO COURT VALIDATES WAIVER SIGNED ON BEHALF OF CHILDCOOPER v. UNITED STATES SKI ASSOCIATION
No. 99CA0187 (Colo..App. 2000)
COLORADO COURT OF APPEALS
August 17, 2000KEYWORDS: Colorado, skiing, waiver, parent, child, valid.
[Note: Attached opinion of the court has been edited and citations omitted.]
Plaintiffs, David Cooper (David) and Michael Cooper (father), appeal the judgment of the trial court in favor of Aspen Skiing Company (the Ski Company), Aspen Valley Ski Club (the Ski Club), John McBride, Jr. (collectively, the ski defendants). We affirm.
By 1995, seventeen-year-old David had been a member of the Ski Club for approximately nine years and was actively involved in competitive ski racing. At the beginning of the 1995-96 season, David and his mother signed a form captioned "Aspen Valley Ski Club, Inc. Acknowledgment and Assumption of Risk and Release" (the release).
The release purported to relieve the Ski Club from: "any liability, whether known or unknown, even though that liability may arise out of negligence or carelessness on the part of the persons or entities mentioned above. The undersigned Participant and Parent or Guardian agree to accept all responsibility for the risks, conditions and hazards which may occur whether or not they are now known." The release further provided that:
[T]he undersigned Participant and Parent or Guardian HEREBY AGREE TO WAIVE, RELEASE, DISCHARGE, INDEMNIFY AND HOLD HARMLESS any and all claims for damages for death, personal injury or property damage which they may have or which may hereafter accrue as a result of any participation in any Aspen Valley Ski Club, Inc. program and related activities and events . . . .
The undersigned Participant and Parent or Guardian further agree to forever HOLD HARMLESS and INDEMNIFY all persons and entities identified above, generally and specifically, from any and all liability for death, personal injury or property damage resulting in any way from participating in the activities and events described above.
By signing this Acknowledgment and Assumption of Risk and Release as the Parent or Guardian, I am consenting to the participant's participation in the Aspen Valley Ski Club, Inc. programs and related activities and acknowledge that I understand that any and all risk, whether known or unknown, is expressly assumed by me and all claims, whether known or unknown, are expressly waived in advance.
On December 30, 1995, David was participating in training for competitive Super G racing, a high-speed alpine discipline. The course had been set by David's coach, defendant McBride. David fell while negotiating the course and collided with a tree, causing severe injuries, including permanent blindness in both eyes.
Subsequently, after David attained the age of eighteen, he and his parents filed suit, alleging negligence and breach of contract on the part of all of the defendants.... [T]he trial court ultimately entered summary judgment in favor of the ski defendants on all claims. This appeal followed.
The Release
Plaintiffs contend that the trial court erred in determining that mother's execution of the release also acted as a release of David's claims. We disagree.
As a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring that the contract of a minor is voidable at the election of the minor after he or she attains the age of majority.
On appeal, the parties do not contest the validity or enforceability of the mother's release executed in favor of the Ski Club. Rather, plaintiffs argue that the mother may not, as a matter of law, release the claims of her minor child.
As a preliminary matter, we reject the ski defendants' contention that David's filing of this lawsuit, originally containing claims for breach of contract, constituted a ratification of the contract.
The critical issue for resolution is whether a parent may release the claims of a minor child for possible future injuries, and the trial court's ruling on this issue of law is subject to de novo review.
Although there has been tangential reference to it, this question has not been specifically addressed by Colorado appellate decision. See Jones v. Dressel, supra (noting in fn. 1 that "approval by a parent does not necessarily validate an infant child's contract" (emphasis added));
Thus, it presents us with an issue of first impression. Upon review of these authorities, we do not find them helpful in deciding the precise issue before us.
Specifically, the question before us involves a determination of whether the public policy of this state supports the enforcement of his mother's waiver of David's right to sue for possible future injuries that David might incur during recreational activities.
Several cases cited by the parties are more closely on point in addressing the public policy considerations surrounding the enforceability of a parent's release of a minor's claims in a recreational activity context.
In Scott v. Pacific West Mountain Resort, 119 Wash. 2d 484, 834 P.2d 6 (1992), a twelve-year-old boy was injured while taking a skiing lesson at the defendant's resort. The boy and his mother had signed a ski school application that contained an exculpatory clause releasing the ski school from liability for negligent conduct.
The Washington Supreme Court determined that, as a matter of public policy in that state, a parent does not have the legal authority to release a child's claims for personal injuries resulting from negligent conduct. The court specifically noted that, under Washington law, a parent could not settle or release a child's post-injury claim without court approval. The court rejected any distinction between pre-injury and post-injury releases, stating that: "In situations where parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care." The Scott court also noted with approval cases from other jurisdictions in making its public policy determination.
The Ohio Supreme Court, on the other hand, has reached a different conclusion. In Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (1998), a seven-year-old child was enrolled in a non-profit soccer club. The child's mother executed an exculpatory agreement releasing the club from liability for any claims by the child.
The Zivich court determined that the issue involved a determination of whether Ohio public policy justified enforcement of the exculpatory agreement. In determining that the agreement was enforceable, the court examined pertinent statutory and case law in making its public policy decision. The court also reviewed case law discussing the importance of parental interest in the care, custody, and management of their children. Finally, the court noted with approval the distinction between pre-injury and post-injury releases. See Zivich v. Mentor Soccer Club, Inc., supra; see also A. Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor's Future Claim, 68 Wash. L. Rev. 457 (1993)(cited in Zivich).
Here, the trial court determined, and we agree, that Colorado should adopt the same conclusion as that reached by the Zivich court. In our view, the Scott decision does not reflect modern realities and does not adequately consider the import of parental decision-making.
Initially, we reject plaintiffs' various attempts to find Zivich inapplicable.
Plaintiffs argue that, as the release did not contain language expressly stating that the parent was releasing the claims of the minor, it was unenforceable against David. The release in Zivich did contain such express language; however, it did not appear that the minor in that case signed the release at all.
Here, the release is signed by both David and his mother and refers to "Participant and Parent or Guardian" throughout. Hence, it is evident that it was entered into by David and his mother together. Cf. Del Bosco v. United States Ski Ass'n, supra (release agreement at issue set forth separate waiver of child's claims, signed only by child, and waiver of parent's claims, signed only by parent; release invalid against child because language did not indicate that parent adopted same waiver as child).
Thus, the release, read as a whole, expressly indicates that any and all claims for liability are waived and the responsibility therefor is assumed by the "Participant and Parent or Guardian."
Plaintiffs further attempt to distinguish Zivich by pointing to the fact that it addresses liability in a non-paid, volunteer situation. However, as set forth below, our decision is based on the fundamental liberty interest of parents in the rearing of their children. Thus, the distinction urged by plaintiffs is without significance.
The United States Supreme Court has recently reaffirmed that parents have a fundamental right under the Due Process Clause to make decisions concerning the care, custody, and control of their children. See Troxel v. Granville, ___ U.S. ___, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
The Supreme Court has also recognized that:
The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101, 118 (1979).
The trial court here, in determining that Colorado should allow parents to release the pre-injury claims of their children, reasoned as follows:
Thousands of such releases are signed each year by parents enrolling their children in almost every kind of school and recreational activity. Parents in executing or not executing such releases make conscious choices on behalf of their children concerning risks and benefits of participation in a program that may involve risk. Those decisions are individual and based upon circumstances of each family and activity. Those are proper parental choices on behalf of their children which should not be ignored. So long as the decision is voluntary and informed, it should be given the same dignity as decisions regarding schooling, medical treatment and religious education.
We agree with this reasoning and find that it comports with the fundamental liberty interest of parents in the rearing of their children. This determination does not conflict with the long-standing concept that minors may ratify or disaffirm their own contracts upon reaching the age of majority. Rather, it affirms the right of families to make informed decisions regarding the conduct of their lives.
Furthermore, the concern that minors should be protected from improvident and imprudent contractual commitments, is not implicated when a parent is involved in the decision-making process.
Here, David and his mother had executed releases for several years in the past. David had participated in the Ski Club's activities for approximately nine years and had raced competitively for a number of those years. David and his mother made an informed, considered decision to waive any prospective claims in exchange for David's participation in the inherently dangerous activity of skiing.
The release was clear and unambiguous on its face and set forth the circumstances surrounding the assumption of liability by "Participant and Parent or Guardian."
Thus, we hold that the otherwise enforceable release, as it was signed by mother, was valid and enforceable and acts to bar plaintiffs' claims against defendants Ski Club and McBride...
The judgment of the trial court is affirmed.