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Hojnowski v. Vans Skate Park3/10/2005
onal injury filed in a court of law." Id. at *5. We decline to follow Troshak for the reasons that we have previously expressed. Additionally, we distinguish between the effect of a waiver of forum that preserves all remedies and a consent to settlement, which a court must review for improvidence.
A number of the decisions finding a minor's claim to be non-arbitrable depend solely upon a determination that the contractual language did not include the minor within the arbitration provisions at issue. They are thus of no particular precedential value here. See Lewis v. CEDU Educ. Serv's, Inc., 15 P.3d 1147, 1151 (Idaho 2000) (arbitration provisions applied only to contracting parties); Accomazzo v. CEDU Educ. Serv's, Inc., 15 P.3d 1153, 1156 (Idaho 2000) (same); Ciaccio v. Cazayoux, 519 So. 2d 799, 804 (La. Ct. App. 1988) (mother had not signed arbitration agreement as representative of deceased children). Others decline to enforce contractual arbitration provisions against minors who are not third-party beneficiaries or do not seek to enforce the substantive provisions of the contract. See Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1075 (5th Cir. 2002) (children of mobile home buyers injured as the result of inhalation of formaldehyde were not bound by contract signed by parents that required arbitration of claims), op. supp. on denial of reh'g, 303 F.3d 570 (5th Cir. 2002); Billieson v. City of New Orleans, 863 So. 2d 557, 562-63 (La. Ct. App. 2003) (parents of children suing as the result of the children's lead poisoning were not third-party beneficiaries of agreement to arbitrate between the City and its property management company), writ denied, 870 So. 2d 303 (2004); Costanza v. Allstate Insurance Co., 2002 WL 31528447 at *6-7 (Dist. Ct. E.D.La. 2002) (children injured by water leakage were not seeking to enforce their rights under warranty contract, nor were they third-party beneficiaries of contract).
We find persuasive the language of the Court of Appeals of Ohio in Cross v. Carnes, 724 N.E.2d 828 (1998). In that case, governed by the Federal Arbitration Act, the producers of the Sally Jessy Raphael Show successfully sought to stay a court action by a child participant who sued on grounds of fraud and defamation when the child was portrayed on the show as a bully. In granting a stay to permit arbitration to proceed under an agreement signed by the child's mother on the child's behalf the court stated:
we note that the parent's consent and release to arbitration only specifies the forum for resolution of the child's claim; it does not extinguish the claim. Logically, if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she has the same authority to choose arbitration as the litigation forum. [Id. at 836.]
Significantly, plaintiffs do not argue that Andrew's mother did not understand the agreement that she signed, that she was coerced into signing it, or that unequal bargaining power between her and Vans precludes its enforcement. As a consequence, we find the agreement to arbitrate to be valid and enforceable in connection with the bodily injury claims asserted on Andrew's behalf. Nothing has been brought to our attention that persuades us that arbitration of personal injury suits by minors against recreational facilities should essentially be barred because the parent, not the child (who is legally incapable of doing so), consents to the forum.
II.
The motion judge limited her decision to the issue that we have just discussed, holding:"There's no determination by this Court on the merits of the request to invalidate the liability waiver, and that's for the arbitrators to determine." We
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