Public Policy Prohibits A Parent Of A Minor Child From Releasing The Minor Child's Potential Tort Claims Arising Out of the Use of A Commercial Recreational Facility
October, 2006
In Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 318 (N.J. 2006), the Supreme Court for the State of New Jersey held that public policy prohibits a parent of a minor child from releasing the minor child’s potential tort claims arising out of the use of a commercial recreational facility. In reaching its decision, however, the Supreme Court held that a parent’s agreement to arbitrate is valid and enforceable against any tort claims asserted on a minor’s behalf.
In December, 2002, Anastasia Hojnowski executed an exculpatory release on behalf of her twelve-year-old, Andrew Hojnowski, as a condition precedent to use of a recreational skateboard facility. Mrs. Hojnowski signed the release well in advance of the infant’s accident, and the facility kept it on file. In January, 2003, Andrew Hojnowski suffered a fractured femur, which required several surgeries, resulting from a claimed aggressive skateboarder. The Complaint against Vans Skate Park alleged that Vans “negligently fail[ed] to supervise the activities at the skate park, negligently failed to control activities of aggressive skateboarders, negligently failed to warn Plaintiffs’ parents that the activities of aggressive skateboarders would not be monitored, and negligently failed to provide a safe place to skateboard.” Hojnowski, at 329-330. The release signed by Andrew’s mother stated that an injured minor who wanted to make a claim was required to file the claim before the American Arbitration Association (“AAA”). The release also waived Andrew Hojnowski’s right to sue Vans Skate Park unless he was injured when Vans intentionally failed to prevent or correct a hazard caused by unsafe equipment or devices. The Burlington County, Superior Court dismissed the action on behalf of the infant plaintiff, ruling that the parties must resolve their claims before the American Arbitration Association. The plaintiffs appealed the decision to the Appellate Division on the basis that the arbitration clause in the release and the release of liability for negligence were not enforceable. The Appellate Division affirmed in part and reversed in part, Vans Skate Park appealed to the Supreme Court.
On appeal, the Supreme Court ruled that a parent’s agreement to arbitrate is valid and enforceable against any tort claims asserted on a minor’s behalf. However, the Court ruled that public policy prohibits a parent of a minor child from releasing the minor child’s potential tort claims arising out of the use of a commercial recreational facility. The majority concluded that, under the circumstances in this matter, Mrs. Hojnowski lacked the authority “to sign a pre-tort agreement limiting the liability of a tortfeasor to exclude negligent conduct.” Id. at 330. Accordingly, the Court held the release should be voided.
The dissent asserted that the Court should have enforced the liability waiver and deferred to a parent’s decision regarding such matters. The judge’s dissent reiterated that parents have the right to make their own parental decisions, and thus, the Court should not overrule parental decisions and a parent’s own risk-benefit analysis when entering into agreements related to their children’s activities. Notwithstanding the dissent’s position, the majority of the Supreme Court found that the waiver was invalid, basing its decision on “the principle that the judiciary must stand as the guardians of the state’s children in the context of this case.” Id. at 328.
Learning Point: A parent cannot waive in advance a child’s right to sue a recreational facility for injuries that they may sustain. In addition, a liability waiver signed by a parent does not preclude a child’s right to sue, or allow a recreational facility from using liability waivers to thwart their liability for their own carelessness. Business owners in New Jersey, however, were victorious in that a parent’s agreement on behalf of a child to arbitrate is enforceable. Having personal injury claims handled by an arbitrator will ultimately lessen the jurors’ awards.
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