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liability waivers--KY ruling- "a parent has no authority to enter into contracts on a child's behalf."

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  • liability waivers--KY ruling- "a parent has no authority to enter into contracts on a child's behalf."

    This ruling will extend in horse world,

    For-profit companies like House of Boom can be held liable for children's injuries even if parents sign a waiver promising not to sue, the Kentucky Supreme Court ruled Thursday.

    In a unanimous decision, the high court said that, for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf."
    At issue is a lawsuit filed by Kathy Miller, whose 11-year-old daughter identified as "E.M." broke her ankle at House of Boom in Louisville in 2015. Miller had checked a box saying she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park.

    House of Boom asked a federal judge to dismiss the case, citing the waiver Miller signed. But because the case involved a "novel issue of state law," the federal court asked the Kentucky Supreme Court to weigh in.
    In the ruling authored by Justice Laurance B. VanMeter, the high court noted that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable.

    https://www.wdrb.com/news/house-of-b...f5a5d152c.html


    link to complete ruling

    http://opinions.kycourts.net/sc/2018-SC-000625-CL.pdf

    from page 11 of ruling

    A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment.
    the footnotes in the ruling are an interesting read of the history of how this has come about

  • #2
    I thought this was already a thing pretty much everywhere. Under 18 you can't enter into a contract, and no one can sign away your rights. Catch-22.

    Do you suppose that the state-level equine limited liability laws (where you usually have to post a sign with specific wording) help at all? I'm not sure how many of those have really been tested.

    I love that Georgia's law where I am specifically mentions llamas:
    Code of Georgia Annotated. Title 4. Animals. Chapter 12. Injuries from Equine or Llama Activities.
    --
    Wendy
    ... and Patrick

    Comment


    • #3
      It should get the attention of the equine world in KY (and perhaps elsewhere). The logic of using insurance to share and spread risk is right out of the CA Supreme Court playbook of the '60s and '70s. This decision could have some interesting unintended (or perhaps intended) consequences.

      G.
      Mangalarga Marchador: Uma Raa, Uma Paixo

      Comment


      • #4
        I am not an attorney, so do not take any of the below as legal advice.

        This case is specifically regarding an amusement-park type venue. Horse-related activities are treated a lot differently in Kentucky. The below article from a law firm discusses it more in detail. So... while a parent cannot sign away the rights of their child, there are laws in place (if followed correctly) that protect farms and horse-related activities, in MOST cases.

        "In 1996, the General Assembly enacted the Farm Animals Activity Act(“FAAA”), which dictated that the inherent risks associated with farm animals, including horses, are beyond the reasonable control of farm animal activity sponsors, professionals, or other involved persons..."
        https://www.mcbrayerfirm.com/blogs-l...-test-rides-of

        Edited to Add: This does not have any context on what a farm's INSURANCE company might require it to do in order to remain in good standing.
        Last edited by L00kAtMeN0w; Jun. 14, 2019, 09:42 AM. Reason: Adding insurance comment.
        www.mayaswellevent.wordpress.com

        Comment


        • #5
          Originally posted by L00kAtMeN0w View Post
          So... while a parent cannot sign away the rights of their child, there are laws in place (if followed correctly) that protect farms and horse-related activities, in MOST cases.
          The problem with this theory is, not all states have an affective Equine Limited Liability law.

          Comment


          • #6
            Originally posted by trubandloki View Post
            The problem with this theory is, not all states have an affective Equine Limited Liability law.
            Totally agree! My response was only in response to KY. I know that in states like CT, where horses are considered an "attractive nuisance" the laws are obviously a lot less protective of farms and the equine community.
            www.mayaswellevent.wordpress.com

            Comment


            • #7
              It appears the sensible thing to do is refuse to offer risky services to children.

              This ruling really absolves parents of their responsibility to look after their own children. Kids do have accidents and get hurt whether from ignoring instructions, or simply having a moment of losing control of their body. No reasonable person would hold the parent liable for their child falling off a bicycle and breaking something.

              ​​​​​Childhood is full of bumps, scrapes and bruises - and should be. It's a vital part of development to learn balance, coordination, proprioception, and even risk assessment.

              If the trampoline park was failing to inspect the equipment and leaving broken equipment in use that is negligence, and negligence can nullify an adult's release of liability. But if the child simply had a childhood accident the park shouldn't be held responsible.

              Comment


              • #8
                This would pretty much shut down all camps and play places. It will kill all sorts of businesses. Those trampoline places send kids to the dentist and ER daily (ask me how I know...).

                Comment


                • #9
                  I'm wondering about the effects on medical treatment waivers, and other waivers like permission for field trips or class trips. I think if it's extended to youth sports, it will end those too.
                  You can't fix stupid-Ron White

                  Comment


                  • #10
                    They can get around anything limiting their liability to sue proving the service provider was negligent. Provider needs to get a lawyer to defend themselves and prove there was no negligence. Cant win even if you “ win” in court.
                    When opportunity knocks it's wearing overalls and looks like work.

                    The horse world. Two people. Three opinions.

                    Comment


                    • #11
                      Originally posted by RedHorses View Post
                      It appears the sensible thing to do is refuse to offer risky services to children.
                      That is the ultimate effect. It is already happening.

                      No matter where you go, there you are

                      Comment


                      • #12
                        Originally posted by L00kAtMeN0w View Post
                        So... while a parent cannot sign away the rights of their child, there are laws in place (if followed correctly) that protect farms and horse-related activities, in MOST cases.
                        I am in PA. They have an equine liability law but I am pretty sure it only applies to adults.



                        Oh, well, clearly you're not thoroughly indoctrinated to COTH yet, because finger pointing and drawing conclusions are the cornerstones of this great online community. (Tidy Rabbit)

                        Comment


                        • #13
                          Equine liability laws don’t protect the barn, trainer or horse owner from having to fight a negligence claim, in that you have to prove your innocence. I carried an individual horse owner liability policy the last few years I was in a teaching and training barn. Not expensive and peace of mind
                          When opportunity knocks it's wearing overalls and looks like work.

                          The horse world. Two people. Three opinions.

                          Comment


                          • #14
                            Originally posted by findeight View Post
                            Equine liability laws don’t protect the barn, trainer or horse owner from having to fight a negligence claim, in that you have to prove your innocence. I carried an individual horse owner liability policy the last few years I was in a teaching and training barn. Not expensive and peace of mind
                            In litigation the defense in any matter has no duty to prove anything. The burden of proof always lies with the moving party. Once the moving party establishes a prima facie case for it's position the burden of "moving forward with the evidence" shifts to the defense if they wish to continue to contest the claim. That's how it works. *

                            Some limited liability laws do protect against ordinary negligence but not all. I don't know of one that protects against gross negligence or willful, wanton, reckless, or intentional misconduct.

                            Read the statute for your State before making ANY comments about it.

                            G.

                            *Unless, of course, you are accused of certain socially abhorrent matters like sexual harassment, racist statements or behaviors, and the like. THEN to be accused is to be guilty, at least in the court of public opinion. In these matters a defendant still has no duty to prove anything, either, as no proof they might offer will ever be accepted. Fortunately, in most judicial forums, the old rule still applies.

                            Mangalarga Marchador: Uma Raa, Uma Paixo

                            Comment

                            • Original Poster

                              #15
                              regarding minors rights there has always been "parens patriae" which means the the government, or any other authority, regarded as the legal protector of citizens unable to protect themselves.can intervene

                              Comment


                              • #16
                                Originally posted by JanM View Post
                                I'm wondering about the effects on medical treatment waivers, and other waivers like permission for field trips or class trips. I think if it's extended to youth sports, it will end those too.
                                The decision cited "for-profit companies"

                                ... _. ._ .._. .._

                                Comment


                                • #17
                                  This has always been a thing... crazy and not realized by most. Even in NJ where we have very good equine liability laws, this is something lawyers latch onto very quickly.

                                  Makes a farm owner not want children on your property or your horses, which is a shame.
                                  http://www.windsweptfarmllc.com

                                  Comment


                                  • #18
                                    Originally posted by Equibrit View Post

                                    The decision cited "for-profit companies"
                                    From the point of view of the injured person why would the profit/non-profit line be relevant? Once upon a time there was a general liability exception for non-profit organizations but that died more than half a century ago.

                                    The vast bulk of the equine world is for profit. Maybe it lets not-for-profit, therapeutic programs off the hook, but maybe not. The injured person is just as hurt if something goes wrong.

                                    G.
                                    Mangalarga Marchador: Uma Raa, Uma Paixo

                                    Comment


                                    • #19
                                      For-profit companies are deemed to have the wherwithall to purchase insurance. Ironically, from the insurance companies that fight liability claims in court.
                                      ... _. ._ .._. .._

                                      Comment


                                      • #20
                                        Originally posted by Equibrit View Post
                                        For-profit companies are deemed to have the wherwithall to purchase insurance. Ironically, from the insurance companies that fight liability claims in court.
                                        What prevents non-profits from buying insurance? The "we need to spend our money on the object of our charitable charter" was the argument used to excuse charities from liability for negligence. That died not long after I was born. I'm almost surprised that issue even was considered.

                                        When a company issues a liability policy they do so by having REALLY smart people called "actuaries" assess the risks presented so that other REALLY smart people called "underwriters" can make rational premium decision. In reality few claims are litigated. Mostly it's the ones with very close fact situations, very large damages, or novel questions which have the likelihood of making new law.

                                        If I were a 4H executive in KY I'd likely give serious thought to ending any sanctioned interactions between minors and large animals.

                                        G.

                                        Mangalarga Marchador: Uma Raa, Uma Paixo

                                        Comment

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