Community Corner
Are Waivers of Liability For Minor Children Enforceable? (No)
Local attorney Danya Shakfeh explains the legal validity of waivers for minor children in Illinois
Fall is in the air. The air is cool and crisp and pumpkin-spice-everything is all around. If you are a parent, that means school is back in full swing and your child is going on field trips and attending birthday parties. And with field trips and birthdays at certain venues, you, parent, must sign a waiver. Indeed, you are tasked with signing away your child's legal rights in the event of an injury.
Despite the routineness of this signing away of our children's legal right of holding a vendor legally accountable, such waivers are not enforceable in Illinois. That's right – just because you signed it, doesn't mean the waiver means anything.
Illinois courts do not enforce them. Period. Under Illinois law, when a minor is involved in litigation, she is a ward of the court and the court has a duty and broad discretion to protect the child's interests. This rule is extended to claims of injury by minor children. Ultimately, Illinois courts have held that a parent waiving their child's rights is against this rule and thus, against public policy. In initial caselaw, courts held that parents and legal guardians can not waive a minor-child's rights after an injury. What this means for parents is that if your child is injured due to a business' negligence, then definitely consider your legal options (whether your child will win is a separate issue). What if the minor-child signed their own legal waiver? Also "nope." Contracts (which what a waiver is) where a minor is a party can be voided by the minor.
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So if a parent can not enter into waivers and the minor-child can void the waiver, where does that leave businesses that host children? How can a business protect itself from legal claims in the event that a child is injured? The answer is simple: follow your industry's best practices and have clear written safety procedures. The business should also document that the safety procedures are being followed and keep a log. For example, if you operate an indoor bounce-house, one of your written safety procedures would be to, prior to opening the store every day, to thoroughly inspect all of the inflatables for holes or other hazards. Another step would be to inspect all equipment and the premises for proper functionality and safety and document the inspection and potential hazards, or lack thereof, every single time. Not only is it more likely that you will find potential hazards, but in the event that a child (or adult) is injured, you can clearly defend your business with evidence that you, as a business owner, have done everything you can to protect your customers (ie, you were not negligent). Lastly, have clear signage indicating the rules and potential injuries if the rules are broken.
So go forth and enjoy those bouncy-houses, sporting venues, and whatever requires a waiver for your minor-child. Of course watch your children as a reasonable parent would and consult a local attorney if you have a legal issue.
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Danya Shakfeh is an attorney based in Oak Brook, Illinois. Her practice focuses on contracts, business law, and business and civil litigation. She has published several legal articles and conducts legal seminars for legal consumers. You can learn more about her practice by visiting ShakfehLaw.com. You can call her office to (630) 517-5529 or email her to dshakfeh@shakfehlaw.com.
