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Hojnowski v. Vans Skate Park3/10/2005
ction. In stating otherwise, the majority has relied upon and quoted at length a Colorado decision, where the court found this distinction to be neither"meaningful or persuasive." Cooper, supra, 48 P.3d at 1234. In my view, the Colorado court's decision was misguided and unrealistic because there is a palpable conflict between the financial interests of the parent and the financial interests of the child once a cause of action accrues, whereas there is no rational conflict when a parent decides whether to execute a pre-tort release. In this regard, I agree with the following views of one commentator on the particular subject:
The concerns underlying [some courts'] reluctance to allow parents to dispose of a child's existing claim do not arise in the situation where a parent waives a child's future claim. A parent dealing with an existing claim is simultaneously coping with an injured child; such a situation creates a potential for parental action contrary to that child's ultimate best interests. A parent who signs a release before her child participates in a recreational activity, however, faces an entirely different situation. First, such a parent has no financial motivation to sign the release. To the contrary, because a parent must pay for medical care, she risks her financial interests by signing away the right to recover damages. Thus, the parent would better serve her financial interests by refusing to sign the release....
Moreover, parents are less vulnerable to coercion or fraud in a preinjury setting. A parent who contemplates signing a release as a prerequisite to her child's parti cipation in some activity faces none of the emotional trauma and financial pressures that may arise with an existing claim. That parent has time to examine the release, consider its terms, and explore possible alternatives. A parent signing a future release is thus more able to reasonably assess the possible consequences of waiving the right to sue. [Purdy, supra, 68 Wash. L. Rev. at 473-74.]
Accord Sharon, supra, 769 N.E.2d at 747 n.10; Zivich, supra, 696 N.E.2d at 206; see also Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 98 (App. Div. 1989) (finding an absence of a conflict of interest, even after the commencement of suit, when a parent, who acted as guardian ad litem for his injured child and who also had pleaded and pursued his own claim; in reversing the trial judge's removal of the parent as guardian ad litem, we observed that the parent had supported the child since birth and would presumably continue to do so regardless of the outcome of the suit, and, accordingly, it would be"inappropriate for any court to presume that it knows better than the parents what is in the best interests of [their] child.").
Contrary to the majority's holding, I would conclude that there is often, if not always, a very real conflict once the child's cause of action accrues and that this conflict justifies judicial examination of any substantive decisions thereafter made by the parent on the child's behalf. That is the reason we have repeatedly held that once an injury occurs, a parent may not release or settle the child's claim without judicial approval. Moscatello ex rel. Moscatello v. Univ. of Med. and Dentistry of N.J., 342 N.J. Super. 351, 360-61 (App. Div.), certif. denied, 170 N.J. 207 (2001); Riemer v. St. Clare's Riverside Med. Ctr., 300 N.J. Super. 101, 110-11 (App. Div.), certif. denied, 152 N.J. 188 (1997); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 377 (App. Div. 1986). On the other hand, there is no conflict between parent and child when a parent decides to execute a pre-tort release in order to permit the child to participate in such an activity and, thus, there is no
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