Are Pre-injury Releases for Children Valid? | What is an Indemnity Agreement?
July 18th, 2013
The kids activity businesses are the hottest trend of the 2000s. Things like Bouncy-rooms, Gymnastics, Laser Tag, Go Karts, Karate, Kick-boxing all cater to making your child’s birthday party big and memorable. Whether your child is joining one as an ongoing activity or attending a one-time birthday party, all these places seem to have one thing in common. They require the parent and/or child to sign some sort of waiver/release of liability if the child gets injured. But, are they really valid?
Children Too Young To Enter Into a Contract
As a general rule of long-standing law, a child under the age of 18 cannot legally enter into a contract. A release is simply a contract to give up a right. Thus, any contract entered into a minor, including a release, is voidable.
Parent Cannot Waive Child’s Rights
In the 1990s, the Texas Supreme Court looked at the issue of whether or not the parent could enter into such a contract on the child’s behalf. They held that a release of liability pre-injury, signed by a parent of the injured child was void. The logic behind this decision was that it was a matter of Texas public policy to protect children–even from their own parent’s actions. Thus, any contract attempting to give up the child’s right to bring a claim against someone for their future, yet unseen, negligence is void.
In spite of the above, releases are still required by all of these facilities. Why? The answer is in the language–they are not just releases, they are indemnity agreements.
What is an Indemnity Agreement?
A release and an indemnity agreement differ slightly in language but drastically in legal meaning. A release is an agreement to give up a persons future rights now, particularly the minor in these kinds of cases. An indemnity agreement, however, is an agreement by the signor (parent) agreeing to hold the indemnitee harmless or free of responsibility from future claims. The latter is in effect an insurance agreement that does not relinquish the future right, but promises to assume the debt it creates.
Subsequently, a Houston Court of Appeals addressed a release and indemnity agreement. In that case, the court held that while the release signed by the parent was against public policy, the indemnity agreement was not.
Effect of Indemnity Agreement: Parents Can Be Liable
The effect of this is now as follows. Assume Junior is invited to a birthday party at a Houston laser tag facility. Mom, without consulting a lawyer, signs a release and indemnity agreement so junior can play laser tag. Junior then gets injured. The release is void as to the child, but enforceable as to the mom. Dad did not sign. So Dad files a lawsuit on behalf of Junior. The release is void as to Junior and has no legal effect as to Dad.
Dad can sue as representative of Junior and take a judgment on Junior’s behalf. However, because Mom signed an indemnity agreement, the laser tag company can now sue Mom to recover all damages they incur (the judgment,legal fees, expenses, etc) as a result of the lawsuit filed by Dad for Junior. They will probably bring her into Junior’s lawsuit on a third-party action. Thus, even though it is void against public policy for the child’s rights to be released in advance, the practical effect of the law is to make it where the child’s parent loses more than the child gains. Of course, since the parents are the legal representatives of the child, they aren’t likely to bring the claim for the child since it will damage them more than it benefits the child. (Unless they are divorced at the time, then anything goes.)
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.