Supreme Court of Kentucky Holds Waiver of Child’s Claims Against For-Profit Business Unenforcible

In an opinion rendered June 13, 2019, the Supreme Court of Kentucky unanimously held that liability waivers signed by parents on behalf of their minor children are unenforceable when the party seeking the waiver is a for-profit business. In re: Miller v. House of Boom Kentucky, LLC ______ S.W.3d _______, No. 2018-SC-000625-CL (Ky. June 13, 2019).

In August, 2015, Kathy Miller took her minor daughter, and her daughter’s friends to play at House of Boom, a for-profit trampoline park located in Louisville, Kentucky. Prior to the children being allowed to play, Miller was required to agree to an extensive release and waiver of any claims providing that she, her spouse, her minor children, or wards may have or that may arise “as a result of participating in any of the ACTIVITIES in or about the premises.” While playing at House of Boom, Miller’s daughter sustained a fractured ankle when another child jumped off a three-foot ledge and landed on her ankle.

Miller filed suit on behalf her daughter against House of Boom for damages related to her injury. Based on the release and waiver of claims, House of Boom asked the United States District Court for the Western District of Kentucky for judgment in its favor. Due to the novelty of this issue in Kentucky law, the federal court sought guidance from the Supreme Court of Kentucky, and requested the Supreme Court answer the following question:

Is a pre-liability waiver signed by a parent on behalf of a minor child enforceable under Kentucky law?

After a thorough review of Kentucky law, the Supreme Court concluded that although parents have the right “to raise their child, choose the child’s educational path, and make healthcare decisions on the child’s behalf,” these rights have “never abrogate[d] the traditional common law view that parents have no authority to enter into contracts on behalf of their child when dealing with a child’s property rights, prior to being appointed guardian by a district court.” The Court explained that Kentucky public policy does not require enforcement of pre-injury waiver of a minor’s claims when the party seeking the waiver is a for-profit company because permitting enforcement of such waivers would remove the commercial establishment’s incentive to take precautions to protect the safety of minor children. As a result, the Supreme Court held that pre-injury liability waivers signed by a parent on behalf of a minor are unenforceable when the waiver is signed in favor of a commercial, for-profit entity.

The Court was very careful to limit expressly its holding to waivers executed in favor of for-profit commercial entities. Although it drew a distinction between waivers in the commercial and non-profit context throughout its opinion, it clearly stated in a footnote that “the question of whether public policy exists to require enforcement of a parent-signed, pre-injury waivers in a non-commercial context is not before this Court today, and thus we make no determination on the issue.” The Court did, however, note that “a slight majority of [other] jurisdictions support enforceability in the context of a non-profit recreational activity.”

Individuals and entities, both commercial and non-profit, that obtain and rely on injury waivers in the course of their business should continue to seek waivers, as the Supreme Court’s opinion only impacts the enforceability of pre-injury waivers executed on behalf of minors. This opinion does not impact the enforceability of waivers executed by adults (anyone age 18 or over) and the Court’s opinion remains silent regarding waiver of an adult’s claims, such as loss of consortium, that are derivative of a child’s injury. As waivers executed on behalf of minors are no longer enforceable, individuals and businesses providing recreational and similar activities to children should consider additional safety precautions and liability insurance. Parents presented with pre-injury waivers on behalf of their children should consider the waiver’s enforceability. Further, insurance adjusters handling claims involving pre-injury waivers executed on behalf of minors should consider the enforceability of those waivers when assessing claims.

If you have any questions regarding this Supreme Court of Kentucky opinion and how it may impact you or your business, please do not hesitate to contact Ian Loos at 270.781.8111, or loos@boamlaw.com, or any member of our Corporate or Insurance Defense practice areas.