But the Kid Signed a Waiver

The conventional wisdom for fitness professionals is that waivers do not work with minors. While in most states this may still be true, recent cases in some states indicate that waivers may provide some liability protection for fitness professionals who work with minors.

The law

The general rule regarding waivers and minors has long been that a waiver is a contract. And, in most states, a minor cannot be bound by a contract signed by the minor or signed on behalf of a minor by a parent or guardian. The law evolved to protect minors from imprudent contractual commitments. One court aptly expressed that one who contracts with a minor, “does so at his own peril and with the attendant risk that the minor may, at his election, disaffirm the transaction” (Del Bosco v. United States Ski Association, 839 F.Supp 1470, Col. 1993). So, while the fitness professional contracting with a minor is bound by the contract, the minor is not. As a consequence, the waiver, traditionally, has not prevented the minor from taking legal action against a negligent fitness club or professional.

This general rule is supported in a recent Florida case (Dilallo v. Riding Safely Inc., 687 So.2d 353, Fla. 4th Dist. 1997). A 14-year-old girl signed a waiver absolving a stable of liability, and was subsequently injured while horseback riding. The court held that “… a minor child injured because of a defendant’s negligence is not bound by her contractual waiver of her right to file a lawsuit.”

Many fitness professionals require that the parent or guardian sign the waiver on behalf of the minor client. However, the general rule has been “that a guardian may not waive the rights of an infant or an incompetent” (39 Am.Jur.2d Guardian & Ward 102), and in a Washington case, a court wrote, “in the absence of statutory or judicial authorization, a parent cannot waive … a minor child’s cause of action merely because of the parental relationship” (Scott v. Pacific West Mountain Resort, 834 P.2d 6, Wash., 1992).

The financial threat represented by this general rule was reinforced in a 1996 Michigan case (Smith v. YMCA of Benton Harbor/St. Joseph, 550 N.W.2d 262, Mich. 1996).

A 10-year-old girl was injured when another child jumped into a swimming pool on top of her. The girl’s mother signed a post-injury release in exchange for a $3,275 settlement. Eight years after the accident, upon reaching the age of majority, the girl filed suit against the YMCA. The court stated, “It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release or compromise claims by or against the parent’s child,” and ruled that the YMCA was not protected by the release signed by the mother.