Paz et al v. LIFE TIME FITNESS, INC. et al, No. 4:2009cv02804 - Document 28 (S.D. Tex. 2010)
Court Description: MEMORANDUM AND OPINION entered DENYING 22 MOTION for Summary Judgment.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
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790 S.W.2d 559, 561 (Tex. 1990) (a party who, before entering into contract, has actual knowledge of its terms cannot escape enforcement of those terms on the ground that the terms are inconspicuous); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 20 S.W.3d 119, 126 (Tex.App.—Houston [14th Dist.] 2000, pet. denied) (holding an indemnity agreement read by indemnitor conspicuous and rejecting indemnitor’s argument that the indemnitee must show that the indemnitor actually noticed the indemnity language when reading the agreement). The plaintiffs rely on an additional aspect of the law governing preinjury releases. Texas and other courts have held that when a parent signs a document that releases a defendant of any liability for injuries suffered by a minor, that release is unenforceable on the basis of public policy. The leading case in Texas appears to be Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App. — Houston [14th Dist.] 1993, no writ). In that case, the parents sued an amusement park for damages resulting from personal injuries their daughter incurred on a ride. The trial court granted summary judgment based on a “Waiver of Liability” form (“waiver”) signed by the child’s older sister who accompanied her to the park. The appellate court reversed, holding that § 12.04(7) of the Texas Family Code, (the predecessor to § 151.001(a)(7)), which empowers a parent to make legal decisions concerning their child, does not give parents the power to waive a child’s cause of action for personal injuries. The court stated that it based its decision “on what our supreme court has described as a ‘strong, long-standing policy of this state to protect the interests of its children.’” Id. at 210 (quoting Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991) (holding that parents could 5 not agree to reduce the amount of child support because it is a benefit of the child, not the custodial parent, based on a public policy to protect children)). Other states and federal courts have also addressed the propriety of a parent or guardian’s execution of a preinjury release on behalf of a minor child. Most have held that preinjury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 629–32 (S.D. W.Va. 2004) (finding that a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); In re Complaint of Royal Carribean Cruises Ltd., 459 F. Supp. 2d 1275, 1279–81 (S.D. Fla. 2006) (under Florida law, parent’s preinjury release of liability on behalf of minor child was unenforceable to exonerate the commercial lessor of personal watercraft from liability for injuries sustained by child in accident that occurred while the minor was a passenger on watercraft operated by the parent/lessee); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 146–47 199 Ill. Dec. 572, 634 N.E.2d 411 (1994) (finding a parental preinjury waiver unenforceable in a case involving a minor child injured after falling off a horse at a horseback riding school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich. App. 552, 550 N.W.2d 262, 263 (1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (2006) (finding in a case involving a child injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational 6 facility”); Childress v. Madison County, 777 S.W.2d 1, 6–7 (Tenn. Ct. App.1989) (extending the law that a parent could not execute a preinjury release on behalf of a minor child to a mentally handicapped 20-year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding in a case involving a child injured by falling off a horse provided by a commercial business that “a parent does not have the authority to release a child’s claims before an injury”); Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 492–93, 834 P.2d 6 (1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy). There are cases enforcing preinjury releases executed by parents on behalf of minor children. Most of these cases involve a minor’s participation in school-run or community-sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564–65, 274 Cal. Rptr. 647 (Cal. Ct. App. 1990) (finding the preinjury release executed by a father on behalf of his minor child enforceable against any claims resulting from the child’s participation in a school-sponsored event); Sharon v. City of Newton, 437 Mass. 99, 112, 769 N.E.2d 738 (2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201, 205 (1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity from liability for negligence because the threat of liability would strongly deter “many individuals from volunteering for nonprofit organizations”). As the Ohio Supreme Court explained in Zivich, in community and volunteer-run activities, the providers cannot afford to carry liability insurance because “volunteers offer their 7 services without receiving any financial return.” 696 N.E.2d at 205. III. Analysis The parties have not cited a Texas Supreme Court case addressing the enforceability of a parent’s preinjury release of liability against a minor child. The guidance provided by the Texas appellate court case law and the underlying statutes provides a reliable basis for making an Erie prediction about how the highest Texas state court would rule if confronted with the question. “When making an Erie-guess in the absence of explicit guidance from the state courts, [this court] must attempt to predict state law, not to create or modify it.” Assoc. Inter. Ins. Co. v. Blythe, 286 F.3d 780, 783 (5th Cir. 2002) (citation omitted). Based on the case law in Texas and in other jurisdictions, this court holds that the preinjury release executed by the minor’s mother in this case is not enforceable to release the defendants from all liability for the minor’s injuries. The record does not suggest that the defendants were operating a nonprofit community or school program. Under the majority approach, the release of a commercial enterprise from liability for the child’s injuries is not enforceable. The motion for summary judgment is denied. SIGNED on December 16, 2010, at Houston, Texas. ______________________________________ Lee H. Rosenthal United States District Judge 8
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