The purpose of exculpatory contracts has always been to mitigate businesses’ and institutions’ economic risk. The purpose of parental due process rights is to promote child well-being by limiting state intrusion into family life. Since exculpation entered the domain of parental rights in the twentieth century, the result has been a proliferation of waivers by which a parent signs away their child’s right to sue a recreational activity provider for negligence if the child is injured while participating. Activity providers favor parental waivers because they protect their bottom line. And even though many courts see through this and invalidate parental waivers to protect children, there are still many other courts that have not prioritized child welfare over commercial interests or that lack binding authority on the issue. This Note argues that courts that use parental rights to justify upholding parental waivers misapply the parental-rights doctrine, effectively coopting a doctrine aimed at promoting child welfare to protect businesses and activity providers instead.
The Minnesota Supreme Court has yet to consider the enforceability of parental waivers as a matter of public policy, but it came close in 2022 with its decision in Justice v. Marvel, LLC. There, Carter Justice sought to invalidate a liability waiver his mother signed on his behalf when he was seven years old so he could participate in a birthday party at an inflatable amusement play area owned by Marvel, LLC. While playing on the company’s inflatables, Justice suffered multiple injuries, including a traumatic brain injury, and sought to recover from Marvel when he turned eighteen. The majority avoided addressing the issue of enforceability of parental waivers, instead finding Marvel’s waiver unenforceable based on its construction. But the dissent and the lower courts would have held the waiver enforceable based in part on their reading of the United States Supreme Court’s parental-rights cases.
This Note advocates for a parental waiver analysis in which courts assess whether waivers, as an exercise of parental authority, actually support child well-being. The Note uses the Justice case as a foil to this proposed analysis and to examine how courts apply parental authority. In Part II, this Note provides a brief history of exculpatory contracts in the United States and how states have handled their validity. Part III outlines the evolution of Minnesota’s approach to analyzing exculpatory clauses, walks through the Justice case, and asserts that the dissenting opinion in the Justice decision was a missed opportunity to extend its reasoning in favor of invalidating indemnification clauses to also invalidate parental waivers as a matter of public policy, as other states have. Part IV summarizes the origins and evolution of parental due process rights in the United States with an eye toward helping lawyers and judges apply the parental-rights doctrine with accuracy. Specifically, Section IV.A explains how parents’ fundamental due process rights stem from an understanding of children as property. Section IV.B delves deeper into the U.S. Supreme Court’s parental-rights cases and summarizes the prevalent themes. Section IV.C considers the level of scrutiny the U.S. Supreme Court applies in parental-rights cases. Then, Part V looks broadly at state court decisions on parental waivers and examines the merits of the most common reasons state courts cite for and against enforcing parental waivers as a matter of public policy. Finally, Part VI proposes that courts engage in a child-well-being inquiry rather than apply parental authority as an absolute or categorical rule that controls cases involving parental decision-making. Part VI then demonstrates what that inquiry should look like by borrowing principles from the U.S. Supreme Court’s parental-rights jurisprudence.