It's our delight to introduce a guest blogger Paul H. Cannon, a trial attorney, and shareholder at Simmons and Fletcher, P.C. He has been practicing personal injury and product liability law since 1995. He has been certified in personal injury trial law by the Texas Board of Legal Specialization since 2005.
Without further adieu, below is Paul H. Cannon discussing Should a Divorced Parent Sign a Waiver (Release) and Indemnity Agreement to Allow a Child to Participate in Recreational Activities.
There are many kinds of recreational activity providers, many of which target catering to kid's parties as a business model. These include bounce house parks, trampoline parks, exercise and fitness centers, obstacle courses, and Ninja Courses, to name a few. Most of these have one thing in common—you must sign a waiver (release) and indemnity agreement to participate.
If you are underage, your parent must sign a waiver (release) and indemnity agreement. While all parents who sign a waiver and indemnity agreement are potentially giving up their kids' ability to seek redress if the facility negligently causes their injury effectively, divorced parents face an additional risk that could leave them personally liable for the cost of the judgment and the defense.
What is a Waiver of Liability or Release of Liability?
A waiver of liability a/k/a release of liability is a written agreement not to hold someone responsible for their negligence. If properly drafted, Texas allows people to sign a waiver of liability or release of weakness even before the failure occurs. If an adult marks this document, it is valid for the adult. Kids, however, enjoy a special privilege under the law.
They have the right to void a contract signed on their behalf that is not in their best interest. So, when a parent marks a waiver/release, the child can have it declared void and still sue the negligent tortfeasor when injured. The parent, who has the right to collect the medical bills, can still be barred from collecting the medical bills up to the child's 18th birthday if the parent signed the same waiver.
What is an Indemnity Agreement?
An indemnity agreement is a contract wherein one party agrees to assume or take on the liability of another party.
The best example of an indemnity agreement is an auto liability insurance policy. It can also be added to a contract between a person participating in a recreational activity and the participant to assume responsibility for the company's negligence.
Indemnity Agreements and Children's Claims
Parents are often required to sign both a Release and an indemnity agreement before allowing their child to participate at trampoline parks and other recreational businesses. Again, it is a contract. Thus, a minor can have it declared void as to the minor. The parent, however, is bound by it. So, let's assume only one parent signed the release.
When the child is injured, that parent cannot get out of the waiver or the indemnity agreement. The other parent can file suit on behalf of the child. However, the company will be able to cross-claim against the signor parent and sue them for the judgment plus their attorney fees. That debt will be community property so both parents will owe it. As a result, the waiver and indemnity agreement deters both parents from bringing a claim.
The Divorced Parent Situation
When the parents are divorced, the effect of the release and indemnity agreement is the same as that of the signing parent. However, as to the non-signing parent, it does not have the same deterring factor.
The non-signing parent is no longer married to the signing parent, so they do not face the community property debt problem. Moreover, because they do not necessarily care if the other parent gets stuck with more debt, they can bring a claim for the child and let the company turn around and sue the signing parent for whatever judgment and attorney fees they incur.
Signing a Pre-Injury Release and Indemnity Agreement
As you can see from the above, signing a waiver (release) and indemnity agreement have serious consequences that affect a child's ability to pursue justice when a recreational activity provider negligently injures them.
They are very dangerous to sign regardless of whether you are single, divorced, or married. However, if you are divorced and considering letting your kid participate if it requires the signing of a waiver and indemnity agreement, you are way better off allowing your ex-spouse to be the one who signs the document. At a minimum, you should never be the only parent to sign for your child—make your ex-spouse sign too.
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