By Anthony Pernice

The enforceability of pre-injury liability waivers signed by parents on behalf of a minor child has long been debated in the circuit courts of the Commonwealth. The Kentucky Supreme Court finally provided a definitive answer to this question. Kathy Miller, as next friend of her minor child E.M. v. House of Boom of Kentucky, LLC, 3:16-CV-332-CRS. The Kentucky Supreme Court has now clearly stated it is against public policy and the statutory scheme of Kentucky to hold pre-injury liability waivers for minor children enforceable. Thus, Kentucky joins a growing number of states to invalidate such waivers in the past several years.  

This matter came to the Kentucky Supreme Court by way of a certified question from the Federal District Court of the Western District of Kentucky. The case arose when a minor child was injured while playing at a trampoline park known as House of Boom in Jefferson County, KY. The minor was jumping on one of the attractions when another patron landed on her leg causing a fracture. The Plaintiff filed suit against House of Boom Kentucky, LLC claiming medical bills, pain and suffering, and permanent disfigurement.

House of Boom sought to enforce a pre-injury waiver signed by the mother on behalf of the minor child. The pre-injury waiver comported with all technical requirements of Kentucky law for the enforceability of such waivers. However, this case presented the issue  of a parent executing a waiver on behalf of a minor child. When House of Boom moved for Summary Judgment based on the waiver, the Federal District Court realized that there was no clear answer to whether or not such waivers were enforceable. The Federal Court sought certification of the question of law to the Kentucky Supreme Court.

Following acceptance of the certified question, the matter was briefed by the parties. House of Boom argued that this was a purely optional recreational activity, and neither the child, nor the parent were forced to execute the waiver or engage in the activity on the premises. This followed a line of cases in which Courts had universally upheld pre-injury waivers in the context of purely voluntary recreational activities. Additionally, it argued that parents are free to provide permission for their children to engage in a myriad of other activities, and it would be an undue burden on the free choice afforded to parents to prevent them from executing such a waiver. In response, the Plaintiff argued that the state has an interest in protecting minor children in the theater of tort rights, thus why court approval of minor settlements is required.

In reaching the conclusion that pre-injury waivers are unenforceable when executed on behalf of a minor child, the Court made an express distinction between for-profit and non-profit entities. The Court cited recent decisions from across the country in which 11 out of 12 jurisdictions had held such waivers unenforceable in the context of for-profit corporations. The Court also looked to the Kentucky statutory scheme governing court approval of minor settlements under KRS 387.020 and KRS 387.125, stating that the legislature has established a public policy interest in the state intervening in the tort rights of a minor. Finally, the Court drew a sharp public policy distinction between for-profit and non-profit entities claiming that for-profit entities have, “the ability to purchase insurance and spread the cost between its consumers. It also has the ability to train its employees and inspect the business for unsafe conditions.”

This decision will likely have a broad ranging impact on the costs of operating for-profit recreational facilities in the Commonwealth of Kentucky. Insurance rates are likely to increase now that pre-injury waivers are conclusively invalid. Additionally, Plaintiff’s attorneys are likely to be more willing to institute such lawsuits now that the legal framework surrounding these waivers is clear. We anticipate increased litigation involving minor children involved in recreational activities particularly at for-profit commercial enterprises.  

If you have any question regarding this case, or involving retail, hospitality, entertainment or recreational facilities, please call a member of our Retail, Hospitality, Entertainment Facilities Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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