Should a Divorced Parent Sign a Waiver (Release) and Indemnity Agreement to Allow a Child to Participate in Recreational Activities?

Originally published by 1p21.admin.

There are many kinds of recreational activity providers, many of which
target catering to kid’s parties as a business model. These include
bounce house parks, trampoline parks, exercise and fitness centers, obstacle
courses and Ninja Courses to name a few. Most of these have one thing
in common—you must sign a waiver (release) and indemnity agreement
to participate. If you are underage, then your parent must sign a waiver
(release) and indemnity agreement. While all parents who sign a waiver
and indemnity agreement are potentially giving up their kids’ ability
to effectively seek redress if the facility negligently causes their injury,
divorced parents face an additional risk that could leave them personally
liable for the cost of the judgment and the defense.

What is a Waiver of Liability or Release of Liability?

A
waiver
of liability a/k/a
release
of liability is a written agreement not to hold someone responsible for their negligence.
If properly drafted, Texas allows people to sign a waiver of liability
or release of liability even
before the negligence occurs. If this document is signed by an adult, it is valid
as to the adult. Kids however, enjoy a special privilege under the law.
They have the right to void a contract signed on their behalf that is
not in their best interest. So, when a parent signs a waiver/release,
the child can have it declared void and still sue the negligent tortfeasor
when they are injured. The parent, who has the right to collect the medical
bills, can still be barred from collecting the medical bills up to the
child’s 18^th birthday if the parent signed the same waiver.

What is an Indemnity Agreement?

An
indemnity agreement is a contract wherein one party agrees to assume or take on the liability
of another party. The best example of an indemnity agreement is an auto
liability insurance policy. It can also be added to a contract between
a person participating in a recreational activity and the participant
to make the participant assume the responsibility for the company’s
own negligence.

Indemnity Agreements and Children’s Claims

Parents are often required to sign both a Release and an indemnity agreement
before allowing their child to participate at trampoline parks and other
recreational businesses. Again, it is a contract. Thus, a minor can have
it declared void as to the minor. The parent, however, is bound by it.
So, let’s assume only one parent signed the release. When the child
is injured that parent cannot get out of the waiver nor the indemnity
agreement. The other parent can file suit on behalf of the child. However,
the company will be able to cross-claim against the signor parent and
sue them for the amount of the judgment plus their attorney fees. That
debt will be community property, so both parents will owe it. As a result,
the waiver and indemnity agreement deters both parents from bringing a claim.

The Divorced Parent Situation

When the parents are divorced, the effect of the release and indemnity
agreement is the same as to the signing parent. However, as to the non-signing
parent, it does not have the same deterring factor. The non-signing parent
is no longer married to the signing parent, so they do not face the community
property debt problem. Moreover, because they do not necessarily care
if the other parent gets stuck with more debt, they can bring a claim
for the child and let the company turn around and sue the signing parent
for whatever judgment and attorney fees they incur.

Signing a Pre-Injury Release and Indemnity Agreement

As a you can see from the above, signing a waiver (release) and indemnity
agreement have serious consequences that affect a child’s ability
to pursue justice when a recreational activity provider negligently injures
them. They are very dangerous to sign regardless of whether you are single,
divorced or married. However, if you are divorced and considering letting
your kid participate in an event that requires the signing of a waiver
and indemnity agreement, you are way better off letting your ex-spouse
be the one who signs the document. At a minimum, you should never be the
only parent to sign for your child—make your ex-spouse sign too.

Bio:

Paul H. Cannon
is a trial attorney and shareholder at Simmons and Fletcher, P.C.
He has been practicing personal injury and product liability law since
1995. He is Certified in personal injury trial law by the Texas Board
of Legal Specialization since 2005.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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