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Hojnowski v. Vans Skate Park3/10/2005
r's Future Claim, 68 Wash. L.Rev. 457, 472-75 (1993). Purdy has postulated that a parent is less vulnerable to coercion in a preinjury setting because the"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." Id. at 473-74.
We are unwilling to rest our decision on such prescience on the part of a parent, accompanied by an importunate child, finding no evidence that such a parent rationally calculates the risk of injury to the child or its economic cost before bowing to the child's request for entry into a craved pleasure ground and signing the release of liability upon which that entry is conditioned. The coercive pressures exerted by children in this context are ones that any parent has experienced.
We therefore find that although the forces influencing a parent's decision-making before and after a child has been injured differ, those forces remain in each setting. Thus, a public interest in judicial intervention remains.
Purdy's argument was met, we believe effectively, by the Court in Cooper, which stated:
We do not find these distinctions meaningful or persuasive, however. It may be true that parents in the pre-injury setting have less financial motivation to sign a release than a parent in the post injury setting who needs money to care for an injured child. Nonetheless, the protections accorded minors in the post injury setting illustrate Colorado's overarching policy to protect minors, regardless of parental motivation, against actions by parents that effectively foreclose a minor's right of recovery. Thus, while a parent's decision to sign a pre-injury release on his child's behalf may not be in"deliberate derogation of his child's best interests," Purdy, supra, at 474, the effect of a release on the child in either the pre-injury context or the post injury one is the same. If parents are unwilling or unable to care for an injured child, he may be left with"no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child's rights might occur." Scott, 834 P.2d at 12. In addition, while pre-injury releases might be less vulnerable to mismanagement, children still must be protected against parental actions--perhaps rash and imprudent ones--that foreclose all of the minor's potential claims for injuries caused by another's negligence. [48 P.3d at 1234.]
A concern also exists that a decision precluding a pre-tort waiver of a minor's rights by a parent will unnecessarily interfere with beneficial school and recreational activities and with athletic events. See Sharon, supra, 769 N.E.2d at 747; Shea, supra, 870 So.2d at 25; Zivich, supra, 696 N.E.2d at 205; Simmons, 670 F.Supp. at 144-45. See also, e.g., Allison M. Foley, Note, We, the Parents and Participant, Promise Not to Sue... Until There is an Accident. The Ability of High School Students and Their Parents to Waive Liability for Participation in School-Sponsored Athletics, 37 Suffolk U. L.Rev. 439 (2004); Richard B. Malamud and John E. Karayan, Contractual Waivers for Minors in Sports-Related Activities, 2 Marq. Sports L.J. 151 (1992). The concern is of course a legitimate one. Nonetheless, we find a significant measure of protection to exist in an noncommercial context as the result of statutes such as the Charitable Immunity Act, N.J.S.A. 2A:53A-7 and the Tort Claims Act, N.J.S.A. 59:1-1 to 14-4, and the civil immunity provided to volunteer coaches, managers and officials for non profit and county or municipal recreational sports teams by N.J.S.A. 2A:62A-6 to
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