Hojnowski v. Vans Skate Park3/10/2005
e.g., Mario R. Arango and William R. Trueba, Jr., The Sports Chamber: Exculpatory Agreements Under Pressure, 14 U. Miami Ent. & Sports L. Rev. 1, 7 n.26 (1997), so long as the operator does not seek to insulate itself from a standard of care imposed by statute or regulation, see McCarthy v. Nat'l Ass'n for Stock Car Racing, Inc., 48 N.J. 539, 543 (1967). I would conclude that this pre-tort release would be enforceable if applied to a claim based on an adult's injuries. Indeed, the point need not be belabored since I do not understand my colleagues to suggest otherwise.
C. Instead of following the principles set forth above, the majority concludes that the present circumstances differ because the injured suitor is a child and not an adult. While this fact may require consideration, I would nevertheless enforce a pretort release executed by a parent in this and other similar circumstances. That is, I disagree with my colleagues because I believe insufficient weight has been given to a parent's right to make decisions regarding the upbringing of a child.
The Supreme Court of the United States has determined that the right of a parent to decide how a child will be raised is one of the oldest and most fundamental rights emanating from the"liberty" interest of the Due Process Clause. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed. 2d 49, 56 (2000); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070, 1077-78 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 627, 67 L.Ed. 1042, 1045 (1923). In Troxel, the Court acknowledged its long history of recognizing that the family is a unit within which parents possess"broad... authority over minor children." 530 U.S. at 66, 120 S.Ct. at 2060, 147 L.Ed. 2d at 57 (quoting Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 118 (1979)). Our own Supreme Court, in adhering to these decisions, has shown equal respect for a parent's constitutional right to the care, custody and control of a child. Sacharow v. Sacharow, 177 N.J. 62, 79 (2003) ("To be certain, both parents have a fundamental right to the care and custody of their children."); Watkins v. Nelson, 163 N.J. 235, 245 (2000) (" he right of natural parents to the custody, care and nurturing of their children has risen to the stature of a fundamental right and deserves special protection."). This fundamental right should be kept free of governmental intervention, even when well-intended, unless there has been"gross misconduct, abandonment, unfitness or the existence of'exceptional circumstances.'" Id. at 237. Among many other things, a parent possesses the basic right to make medical decisions for a child, including, at least in that context, the giving of consent to the child's release of a battery claim. See, e.g., Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 206 (Ohio 1998). No doubt thousands of such decisions are made by the parents of New Jersey's children every day. A parent also has the right to permit or deny a child's participation in any or all of the recreational activities that may be available. We defer to a parent's decisions over a child's desires because we presume the parent possesses superior judgment and wisdom in such matters. See Parham, supra, 442 U.S. at 602, 99 S.Ct. at 2504, 61 L.Ed. 2d at 118 ("The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions."). In adhering to this approach, I believe our courts should defer to parental decisions in these circumstances.
Accordingly, I strenuously reject the majority's position that the constitutional r
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