NOT ALL LIABILITY WAIVERS ARE CREATED EQUAL IN KENTUCKY
With summertime upon us and communities re-opening, one thing is certain: The children are done with school and many parents are looking for recreational activities to keep kids busy. Recreational activities offered by a business typically go hand-in-hand with liability waivers. The scenario is familiar. A child’s classmate from school has a summer birthday party and rents a big inflatable bounce house for all the other kids to play on. Before a child can play with the other kids, the parent has to sign a waiver saying the parent can’t sue the bounce house company for any injuries that happen to the child. And parents typically sign these waivers, understanding the risks involved and not wanting their child to miss out on the fun with their friends. The parental liability waiver is something so common in today’s society that almost all parents, even attorneys, sometimes, do not even take the time to read it. However, as the season for these types of activities is upon us, patrons of recreational facilities and owners of the facilities themselves should be aware of a recent Supreme Court of Kentucky decision making some of those waivers unenforceable.
In Miller v. House of Boom, the Kentucky Supreme Court considered whether a liability waiver signed by a parent was enforceable against the child by a for-profit trampoline park in Louisville. The child broke her ankle while playing at the park, and the mother brought suit against the park. The park asked for judgment in the park’s favor due to the liability waiver signed by the mother, but the Court held that Kentucky statutory law and public policy made the waiver unenforceable under the circumstances. While parents undeniably have the supreme right to make many decisions regarding their children, the Court stated that, at law, this does not include a right to enter into contracts on behalf of their children absent appointment as a guardian over certain property interests by a district court in Kentucky. Here, the property right is the child’s right to recover for injuries caused by the trampoline park’s negligence through a lawsuit or other means. Therefore, as a general matter, a parent could not waive the trampoline park’s liability for future injuries on behalf of the child.
Given that general rule, the Court stated that there must be some overriding public policy interest in order to make the liability waiver enforceable. The trampoline park offered three public policy arguments in their favor, all of which the Court rejected. First, the park argued that enforcement of the waiver is supported by the fundamental liberty interest a parent has in the care, custody, and control of one’s child. The Court recognized the existence of the fundamental liberty interest, but held that it did not apply to waiver of a child’s right to a tort claim. Second, the park argued that public policy concerns regarding waiver were more present in a post-injury scenario than a pre-injury scenario. The Court disagreed and noted that, in actuality, concerns were more present in pre-injury waivers because no real injury is considered in the bargaining process. Basically, a parent does think twice about signing away the child’s rights when the child’s leg is actually broken. Finally, the park argued that Kentucky enforces the same waivers for non-profit recreational facilities (i.e. school sports and public swimming pools), and that the public policy concerns were the same. The Court’s response was that the state wants to encourage youth recreation for the public welfare, but that the nonenforcement of a liability waiver is not a disincentive in the for-profit, commercial context. This is because for-profit entities have more ability to spread the costs of insurance among their customers and to properly train staff on how to make facilities safer. They do not need the protection of the waiver in the same way as a non-profit or governmental organization does to promote recreational activity.
What this means for parents and recreational businesses in Kentucky is that liability waivers signed by parents on behalf of children at a clearly for-profit business are no longer enforceable. Facilities that operate in a gray area between the public and private sphere may also want to be aware that their waivers are potentially unenforceable. For parents, this means that if you signed a waiver and your kid is injured, you may have a right to compensation from that recreational facility after all. Owners of these recreational facilities need to contact their insurance agents to make sure that they have adequate coverage and are taking all necessary steps to protect themselves from potential lawsuits.