Parents make all kinds of important decisions for their children, including whether to allow them to participate in risky sports. But according to a New Jersey appeals court, while Mom can let Junior chance a broken bone in a skateboard accident, the right to sue over that broken bone is too sacrosanct to be waived by contract.
When Anastasia Hojnowski took her 12-year-old son Andrew to Vans Skate Park in Moorestown, New Jersey, she signed a waiver agreeing to hold the park legally blameless for any injuries he sustained, other than those resulting from improperly maintained park equipment. But when Andrew broke his femur at the park, his mother took the skate park to court anyway. A three-judge state appeals court panel determined "that a parent has a constitutionally protected right to direct the activities in which a child may engage" but not "that a parent's authority to relinquish a child's tort claims is similarly protected." In accordance with another provision of the waiver, the case will now enter arbitration.
While similar policies hold in most jurisdictions, Judge Clarkson Fisher Jr. dissented, observing that New Jersey statutes explicitly protect such "inherently risky sports" as roller skating, skiing, and horseback riding; it was difficult to see why the principle shouldn't be extended to skateboarding. Fisher also argued that courts should generally defer to parents' decisions about how to raise their children. Here, as Vans' attorney Alex Raybould sums it up, "they're saying you can contract on behalf of your child–so long as we think it's appropriate."
After an early explosion of skate parks in the 1970s, most were bulldozed because of liability concerns. There's been a resurgence in construction, but Skatepark Association of the U.S.A. head Heidi Lemmon says liability remains "a huge deterrent" because lobbying by trial lawyers prevents skateboarding from being classified as "inherently hazardous" in most states.If the possibility of negligence suits limits the number of private, supervised parks, more young skaters are likely to turn to unsupervised public parks–which frequently enjoy statutory liability protection–or to the streets. That may not be safer, but at least there's nobody to sue.?