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Hojnowski v. Vans Skate Park3/10/2005
ight of parents to raise children as they deem appropriate extends only to"such fundamental concerns as establishment of a home, upbringing and education, religion, or medical care." I believe a parent also has the right -- with which the state must not interfere -- to decide whether a child may play football or collect sea shells, learn to ride a horse or engage in birdwatching, go skateboarding or only play video games involving animated skateboarders, or engage in any other type of sport or recreational activity that encompasses inherent risks, or those that are sedate, or all such activities, or none. The majority may not view these matters as important, but, important or not, they and countless others ought to be resolved solely within the sphere of the family and, absent the parents' unfitness, it should be beyond our courts' power to say otherwise. To the extent the majority has determined that Anastasia's decision to allow Andrew to skateboard at Vans' facility, conditioned upon executing a pre-tort release, is not the type of decision protected by the Due Process Clause, I wholeheartedly disagree. While the majority's decision stands on the declared principle that the members of"the judiciary must stand as guardians of the State's children in this context," my view is that, absent proof of unfitness, the guardians of this State's children ought to remain their parents.
Considering the great importance of the constitutional right to raise a child as a parent deems appropriate, I would not overrule a parent's decision to allow a child to participate in an inherently risky sporting activity in exchange for the forfeiting of a tort claim emanating from the child's assumption of the sport's inherent risks. Those decisions from other jurisdictions cited by the majority that invalidate the application of pre-tort releases to the claims of children are, in my view, incompatible with this important constitutional right. See Joseph H. King, Jr., Exculpatory Agreements For Volunteers In Youth Activities -- The Alternative To"Nerf" Tiddlywinks, 53 Ohio St. L.J. 683, 716 (1992) (" udicial attitudes toward exculpatory agreements signed by parents on behalf of their minor children seem inconsistent with the powers conferred on parents respecting other important life choices."). Rather than join with those decisions, I would follow the decisions of sister states that have recognized the superior authority of parents, granted to them by the Due Process Clause, to make decisions of the type made here. See Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002); Zivich, supra, 696 N.E.2d 201; Hohe v. San Diego Unified Sch. Dist., 274 Cal. Rptr. 647 (Cal. App. 1990); see also King, supra, 53 Ohio St. L.J. 683; Stephanie Ross, Interscholastic Sports: Why Exculpatory Agreements Signed by Parents Should Be Upheld, 76 Temp. L. Rev. 619 (2003); Robert Nelson, The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive Their Children's Tort Liability Claims, 36 U.S.F.L.Rev. 535 (2002); Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor's Future Claim, 68 Wash. L. Rev. 457 (1993).
I also disagree with the majority's holding that our interest in the fairness of a parent's pre-tort decision is the same as the judiciary's interest in overseeing a parent's post- tort decisions. In this regard, I do not mean to suggest that the judiciary's interests in the well-being of litigants who are minors should be reduced or eviscerated. Instead, contrary to the majority's view, I believe that the circumstances that attach to a parent's decision-making after the child has been injured are far different from those presented prior to the accrual of a cause of a
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