Pre Injury Releases

Brien Roche

Pre injury releases took another hit in a 2010 case from the Iowa Supreme Court of Galloway v. State found at 790 N.W.2d 252.  In that case the State Supreme Court joined most other states in ruling that it is against public policy for a parent to waive a child’s injury claim prior to the injury.  Although such contracts entered into by an adult may be enforced the waiver by a parent is not binding on a child.

The logic behind the rule is based on the best interest of the child.  It is in the best interest of the child that the child have a means of recovery in the event of injury.  If the parent waives that and is unable to pay for the injury to the child, then the child suffers. In addition the public may suffer. That is the child may become a burden on the state as a result of needing medical resources.

In addition, the child is not a real party to any such pre injury release. The child has little if any grasp of what is being given up in the release.  The claim that this ruling may restrict public access to various youth events was not felt to be compelling. There was no evidence of that occurring in other states that had adopted the same rule.

Pre Injury Releases-Minors

The Court of Appeals of Maryland in BJ’s v Rosen 435 Md 714 (2013) ruled such releases are valid.

There are several reasons why such releases may be unenforceable:

• In many jurisdictions such an agreement would require Court approval before it could be valid
• These agreements create disincentives for businesses to exercise reasonable care in maintaining their premises.
• The  business is in a much better position to curtail hazards for children than are the parents.
• The state has an interest in protecting children in its role as parens patriae.
• Finally, the business should be given some incentive to maintain adequate insurance coverage so as to protect all of it patrons.

The Maryland Court in this case did not deal with the issue of whether these types of releases would apply to either non-profit or governmental organizations.

Call, or contact us for a free consult. For more information on injuries to minors see the page on this site.

Pre Injury Releases and Indemnity Provisions

Aside from pre injury releases Courts have begun to deal with indemnity clauses in landlord tenant cases. A Virginia Trial Court decision dealt with a lease where the landlord was seeking to enforce an indemnity clause.  The clause required the tenant to indemnify the landlord for damages caused by the landlord’s negligence.  The Court found that to be unenforceable under the Virginia Residential Landlord and Tenant Act.  In this case the tenant lost his property when the house in question caught fire. The landlord had modified the fireplace and covered the opening below the hearth with flammable material.

The Court found that the indemnity clause within the lease was shocking.

The Court noted that pre injury release provisions are contrary to public policy. They are void.  The Court further noted that there was no arms length dealing. The tenant was not a willing indemnitor.  The Court found that this was simply a guise to subvert public policy.

Furthermore the Court relied upon the Landlord Tenant Act that says that a lease shall not contain language where a tenant agrees to limit any liability of the landlord to the tenant arising under law.

Exculpatory Clauses

In addition exculpatory clauses have been the subject of some controversy for many  years. This is so both in the context of contract and in the context of personal injury claims.  Such a clause seeks to limit the liability of the person or company drafting it. The Kentucky Court of Appeals has ruled that such clauses for home inspectors are void.  The Court said:

• if the clause were valid then the home inspector would have little motive to act in a diligent fashion.  If he knew that his liability was simply to refund money to the customer that provides little incentive to be diligent.
• there is no real arms length bargaining between the home inspector and the potential home buyer.
• if the home inspector held himself out as willing to perform this type of service for the public, then he should not be allowed to hide behind such a clause.
• if the inspector’s conduct exposed the buyer to a future loss, then that is something that should be subject to some recompense.
• the home inspection business is suitable for public regulation. It is of great import to members of the public. The public deems a home inspection to be a necessity prior to buying a home.

Prohibited Practices

Under the Virginia Consumer Protection Act some or all of these different types of clauses may be prohibited.  See in particular paragraph 13 dealing with prohibited practices.  For a private litigant to have a remedy, there must be actual damages.  However the Attorney General’s office or the Commonwealth Attorney can sue businesses for using these clauses and also seek statutory damages plus an injunction.

Call, or contact us for a free consult. For more information on releases see the pages on Wikipedia.