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Hojnowski v. Vans Skate Park3/10/2005
14 N.J. Super. at 377. See also Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 96 (App. Div. 1989)(affirming the foregoing proposition). In Zukerman, we held that a parent may reject even a large settlement and proceed to a trial that may result in either a greater or lesser verdict, unless clear and convincing evidence demonstrates that a conflict exists between the parent's and the infant's positions or that the parent is otherwise incapable of effectively exercising judgment and discretion in the matter. Id. at 97. However, that decision cannot be read to authorize a parent to forego any of the child's substantive rights to recovery. Simply put, no New Jersey statute, rule or decision authorized Andrew's mother to sign a pre-tort agreement limiting the liability of a tortfeasor to exclude negligent conduct in the circumstances of this case.
In light of the protections afforded to the interests of minors in this State in connection with tort claims, family matters and otherwise, we will not here create the exception that the law has heretofore failed to recognize. Thus we declare that aspect of the agreement to have been void from its inception. The severability clause of the agreement preserves the agreement in other respects.
Like agreements to arbitrate the claims of minors, agreements waiving a minor's substantive remedies have been treated in varying fashions elsewhere. For decisions invalidating such waivers, see, e.g., Shea, supra, 870 So. 2d at 25 (refusing to enforce parental waiver in commercial context); Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1233-35 (Colo. 2002) (invalidating prospective exculpatory provision on public policy grounds); Scott v. Pacific West Mtn Resort, 834 P.2d 6, 11-12 (Wash. 1992) (" o the extent a parent's release of a third party's liability for negligence purports to bar a child's own cause of action, it violates public policy and is unenforceable."); Hawkins v. Peart, 37 P.3d 1062, 1065-66 (Utah 2001) (voiding release in horseback riding context on public policy grounds); Meyer v. Naperville Manner, Inc., 634 N.E.2d 411, 415 (Ill. Ct. App. 1994) ("Since the parent's waiver of liability was not authorized by any statute or judicial approval, it had no effect to bar the minor child's (future) cause of action"); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex. Ct. App. 1993) (the fact that the Texas Family Code empowers parents to make legal decisions concerning a child does not give them the right to waive a cause of action for personal injuries; such an interpretation would be against the State's public policy to protect minors); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 245-46 (Tenn. Ct. App. 1990) (a parent on behalf of a child cannot exculpate or indemnify an organization against liability); Simmons v. Parkette National Gymnastic Training Ctr., 670 F. Supp. 140, 144 (E.D.Pa. 1987) (it is immaterial under Pennsylvania law that the release is also signed by the minor); Apicella v. Valley Forge Military Acad. & Jr. Coll., 630 F. Supp. 20, 24 (E.D.Pa. 1985) ("Under Pennsylvania law, parents do not possess the authority to release the claims or potential claims of a minor child merely because of the parental relationship"); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979) (dictum; a parent cannot release a child's cause of action). Contra, Sharon v. City of Newton, 769 N.E.2d 738, 747 (Mass. 2002) (validating release on basis of public policy favoring same, the fundamental liberty interest of parents in rearing their children, and the nonessential nature of the activity in which the child engaged); Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 204-07 (Ohio 1998) (finding no public policy violated by release, which
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