Hojnowski v. Vans Skate Park3/10/2005
was within parent's power to execute); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564-65, 274 Cal. Rptr. 647, 649 (1990) (a parent may contract on behalf of a child).
We find three arguments raised in the preceding cases to merit further discussion. First, we note the argument, expressed in decisions such as those in Sharon, supra, and Zivich, supra, that a parent can release the tort claims of a child as the result of the parent's fundamental right to make decisions that bear upon the care, custody and upbringing of their children. 769 N.E.2d at 746. Although we acknowledge that fundamental right to exist, as we must (see, e.g. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed. 2d 49, 56-57 (2000)), we do not read the precedent defining that right (as does our colleague) as encompassing a decision such as this to forego substantial tort remedies, a decision that we find to be different from such fundamental concerns as establishment of a home, upbringing and education, religion, or medical care. See, e.g., Parham v. J.R., 442 U.S. 584, 604, 99 S.Ct. 2493, 2505, 61 L.Ed. 2d 101, 120 (1979)(mental hospital institutionalization); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935-36, 52 L.Ed. 2d 531, 537 (1977) (family living arrangements); Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32 L.Ed. 2d 15, 24 (1972) (freedom of religion in light of compulsory education); Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558-59 (1972) (termination of parental rights); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070, 1077-78 (1925) (private schooling); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923) (teaching of modern languages). Were it otherwise, existing restrictions on parental conduct in the context of litigation involving minors would long ago have been abrogated in New Jersey.
Our colleague would find a mother's decision to allow her son to skateboard at a Vans commercial facility"conditioned upon giving Vans a pre-tort release" to be constitutionally protected by the Due Process Clause as an aspect of the constitutional right of a parent to raise a child as the parent deems appropriate. We agree with our colleague that a parent has a constitutionally protected right to direct the activities in which a child may engage. Indeed, this is the thrust of the United States Supreme Court cases that we have cited and upon which our colleague relies, as well as the New Jersey Supreme Court precedent that he cites. However, we disagree that a parent's authority to relinquish a child's tort claims is similarly protected. No decision by the United States or New Jersey Supreme Court has recognized that right. Our colleague's sole direct support is derived from the decisions by courts of other states in Sharon, supra, and Zivich, supra, which we choose not to follow, finding no support for their reasoning in authorities we regard as persuasive and controlling.
An additional argument is raised that a pre-tort release can be distinguished from a post-injury one, because the pressures on the parent, post-tort, to accept an inadequate settlement, the possibility of parental dishonesty, and the potential existence of indemnification agreements placing the burden of payment on the parent do not exist in a pre-tort context. Before the tort occurs, the argument continues, the parent's determination to sign a release is tempered by the knowledge that if injury takes place, medical expenses will become the parent's responsibility. See Angeline Purdy, Note, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Mino
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