The Lawletter Vol 35 No 2, January 21, 2011
Taneia, a 14‑year‑old girl, attended a field trip with a youth outreach program organized by a public university and the State of Iowa. On the field trip, she was injured when she was struck by a car as she attempted to cross the street. Before Taneia had been allowed to go on the field trip, her mother had been required to sign two documents, entitled "Field Trip Permission Form" and "Release and Medical Authorization." The gist of these documents was that they purported to waive any potential claims against the university and the State arising from injuries to participants in the field trip.
When Taneia's mother sued the trip organizers in negligence for Taneia's injuries, an Iowa trial court granted the defendant State summary judgment on the basis of the agreements signed by the mother before the field trip. The Iowa Supreme Court recently reversed that decision and remanded the case to the trial court. Galloway v. State, 790 N.W.2d 252 (Iowa 2010). The court joined what it described as a majority of the states which have concluded that it is against public policy for a parent to waive liability for a child's injury before the injury has occurred.
Since the freedom to contract weighs in the balance when public policy grounds are asserted against the enforcement of a contract, courts must be attentive to prudential considerations and exercise caution. In fact, such considerations had led the Iowa Supreme Court in other cases to repeatedly hold that contracts exempting a party from its own negligence are enforceable and are not contrary to public policy. Notwithstanding this well‑established general rule, the Galloway court was persuaded that predominant public policies preclude the enforcement of a parent's preinjury waiver of her child's cause of action for injuries caused by negligence.
In addition to the freedom to contract, the defendants relied on legal traditions and a separate public policy giving deference to parents' decisions affecting the control of their children and their children's affairs. It is true that a parent's interest in the care, custody, and control of children is one of the oldest of the fundamental liberty interests recognized by no less than the U.S. Supreme Court. Yet, reasoned the court, the deference and respect for parents' decisions affecting their children's property interests are restricted to some extent by the public's interest in the best interests of children. For example, the law will not permit a parent to compromise his or her child's financial security by waiving child support payments from the other parent in exchange for the relinquishment of visitation rights. To rule otherwise would be to make the child's best interest subservient to parental self-interest.
In short, children must be accorded a measure of protection against improvident decisions of their parents. That same public policy demands that minor children be protected from forfeiture of their personal injury claims by parents' execution of preinjury releases. By signing a preinjury waiver, a parent purports to agree in advance to bear the financial burden of providing for her child in the event the child is injured by a tortfeasor's negligence. But sometimes parents are not willing or able to perform such commitments after an injury has occurred. If parents fail to provide for the needs of their injured children, and the preinjury waiver in favor of the tortfeasor is enforced, financial demands may be made on public funds to cover the cost of care.
Even aside from concerns about public funds, however, a different rule is required, for the protection of vulnerable children, when an adult waives personal injury claims not for herself but for a minor child. In the circumstances faced by Taneia and her mother, Taneia was simply vulnerable in ways that adults are not. The parent who reads, understands, and executes a waiver of liability for her child generally is not the person who will participate in the activity. By contrast, the child may or may not understand what has been forfeited as a condition of her participation in an activity. She may or may not have the knowledge and experience required to assess and avoid risks of injury created by the activity. Not only that, but even if the child is uncomfortable with some aspect of the activity or senses a risk of injury while participating, the child may or may not have the ability to remove herself from the activity. The child's ability to avoid the risk of injury will vary greatly, depending on the age and maturity of the child, the type of activity, her access to a phone, the personality and competence of the people supervising the activity, and other factors.
The defendant State also raised the specter of the reduction or elimination of recreational, cultural, and educational opportunities for youths if releases like those signed by Taneia's mother are invalid, because sponsoring organizations will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability. While not completely discounting that prospect, the court found it to be "speculative and overstated":
We find no reason to believe opportunities for recreational, cultural, and educational activities for youths have been significantly compromised in the many jurisdictions following the majority rule. In the final analysis, we conclude the strong public policy favoring the protection of children's legal rights must prevail over speculative fears about their continuing access to activities. We are mindful that if we have misapprehended the public policy considerations at work on this issue, the political branches of our government will adopt a different rule.
Id. at 259.