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Cooper v. Aspen Skiing Company6/24/2002
General Assembly could choose to address it differently.
1. Colorado's Public Policy
The General Assembly has demonstrated an on-going commitment to afford minors significant safeguards from harm by passing numerous statutes designed to protect minor children. Most significant of these for purposes of this case are the protections accorded minors in Colorado in the post-injury claim context. Colorado laws do not allow a parent the unilateral right to foreclose a child's existing cause of action to recover for torts committed against him. Rather, the General Assembly has granted minors a number of protections to safeguard their post-injury rights of recovery. Indeed, the Colorado Probate Code provides significant procedural protections for minors in the post-injury claim context. This legislation creates mechanisms for the appointment of a conservator to protect a minor's settlement rights. § 15-14-403, 5 C.R.S. (2001); § 15-14-425(2)(t), 5 C.R.S. (2001). It also provides minors important protections by creating means by which the court may ratify the settlement of a minor's claims. § 15-14-412(1)(b), 5 C.R.S. (2001). Importantly, a parent may not act as a minor's conservator as a matter of right, but only when appointed by the court. § 15-14-413, 5 C.R.S. (2001).
Thus, we agree with the Utah Supreme Court and the Washington Supreme Court - both of which recently analyzed the same issue presented here - that "since a parent generally may not release a child's cause of action after injury , it makes little, if any, sense to conclude a parent has the authority to release a child's cause of action prior to an injury." Scott, 834 P.2d at 11-12; accord Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001).
Arguably, the differences between the two types of releases may weaken any comparison between them. See Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor's Future Claim, 68 Wash. L. Rev. 457, 472 (1993)(arguing that while existing tort claims are vulnerable to parental mismanagement because of the financial pressure to accept inadequate settlements, outright parental dishonesty, and the existence of indemnity provisions in settlements, parents who release future claims do not have the same financial motivation to sign a release because - by signing the release before injury - the parent will ultimately be required to pay for medical care).
We do not find these distinctions meaningful or persuasive, however. It may be true that parents in the pre-injury setting have less financial motivation to sign a release than a parent in the post-injury setting who needs money to care for an injured child. Nonetheless, the protections accorded minors in the post-injury setting illustrate Colorado's overarching policy to protect minors, regardless of parental motivations, against actions by parents that effectively foreclose a minor's rights of recovery. Thus, while a parent's decision to sign a pre-injury release on his child's behalf may not be in "deliberate derogation of his child's best interests," Purdy, supra, at 474, the effect of a release on the child in either the pre-injury context or the post-injury one is the same. If parents are unwilling or unable to care for an injured child, he may be left with "no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child's rights might occur." Scott, 834 P.2d at 12. In addition, while pre-injury releases might be less vulnerable to mismanagement, children still must be protected against parental actions - perhaps rash and imprudent ones -that foreclose all of the minor's potential claims for
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