The state Supreme Court ruled Thursday that a liability waiver signed by a parent on behalf of a minor child is unenforceable under Kentucky law, which could affect several businesses in Bowling Green.
Ben Crocker, a litigation attorney at Crocker Law Firm, said he was not surprised by the ruling. According to Crocker, for-profit businesses will likely continue using liability waivers even if their enforceability is murky at best.
“Waivers were already very questionable,” Crocker said. “Doing the work I do, I would not assume that one of those would insulate (for-profit companies) if they were negligent. But just because someone is injured on the property, it doesn’t mean that there is liability – (plaintiffs) will still have to prove negligence by the entity.”
The ruling stems from a lawsuit filed by Kathy Miller, acting as next friend of her minor child, E.M., against House of Boom Kentucky LLC. By order entered Feb. 14, the Supreme Court agreed to hear the case after the U.S. District Court, Western District of Kentucky requested certification of law.
On Aug. 6, 2015, Miller purchased tickets for her daughter – who was 11 at the time – and her daughter’s friends to play at House of Boom, a for-profit trampoline park in Louisville.
Before Miller could purchase the tickets, she was required by House of Boom to check a box indicating that she had read the waiver of liability. The waiver stated that Miller would “expressly and voluntarily” agree not to sue House of Boom “despite all known and unknown risks including but not limited to serious bodily injury, permanent disability, paralysis and loss of life.”
According to the ruling, the waiver “includes language that, if enforceable, would release all claims by (1) the individual who checked the box, (2) her spouse, (3) her minor child, or (4) her ward against House of Boom.”
After checking the box, Miller’s daughter began jumping on the park’s collection of trampolines and acrobatic attractions. E.M. suffered a broken ankle after another girl “jumped off a three-foot ledge” and landed on it, which prompted her mother to sue House of Boom on her child’s behalf.
Ultimately, the Kentucky Supreme Court ruled that a parent doesn’t have “the authority to sign a preinjury exculpatory agreement” on their minor child’s behalf.
Justice Laurance B. VanMeter, who rendered the court’s opinion, wrote in the ruling’s conclusion, “Simply put, the statutes of the General Assembly and decisions of this Court reflect no public policy shielding the operators of for-profit trampoline parks from liability.”
Crocker said he and many of his fellow attorneys were already operating under the assumption that companies would be liable for their negligence whether the person suing them had signed a waiver or not.
“Those businesses typically have liability insurance,” Crocker said. “If they have liability insurance, (a waiver) protects them up to (a) certain sum. It’s mostly protecting their insurance company, but if they don’t have coverage, (a waiver) winds up helping them.”
Paige Roberts, the general manager at Vertical eXcape Climbing Center in Bowling Green, said liability waivers are a “really important piece to the liability issue,” but the facility has many other regulations that also address safety concerns.
“We take liability and safety very seriously,” Roberts said. “We have really intense training that people go through before they’re allowed to climb on our walls here so that hopefully we can cover a lot of the liability issues that could arise on our end. We want to kind of handle it before so that everyone is super informed and really capable of being safe on the walls here.”
Roberts said Vertical eXcape will monitor the ruling and make any necessary adjustments.
A footnote in the Supreme Court’s official ruling noted the decision was not a determination on the issue of enforcing “parent-signed, preinjury waivers in a non-commercial context,” which could bring into question the liability waivers used by Lost River Cave – a 501(c)(3) nonprofit – for its two zip lines.
Rho Lansden, Lost River Cave’s CEO and executive director, said it was too early for her to form an opinion on the ruling or make a decision because she hadn’t had a chance to review the opinion thoroughly.
“I really don’t have anything to add at this point because I haven’t read it myself,” Lansden said.
Area businesses Beech Bend, Jump Air Zone and Party Place did not respond to multiple attempts for comment.
David F. Broderick, an attorney at Broderick & Davenport PLLC, said the court’s ruling “certainly protected” people under the age of 18, which is what’s always been done in Kentucky. “As it should,” Broderick said.
“This decision of the Kentucky Supreme Court is a well-reasoned recitation of long-standing Kentucky law,” Broderick wrote in an email. “These types of waivers have long been held unenforceable because of the need to protect minors. Obviously, to allow someone else to waive a claim for minors, including a parent, the result of which would continue with them into their majority, is a matter of which public policy and judicial interpretation should make these waivers unenforceable.”
For more information regarding the decision, read the full opinion published by the Kentucky Supreme Court here: http://opinions.kycourts.net/sc/2018-SC-000625-CL.pdf?fbclid=IwAR3G4SwWgke1WwfCFen3N8Ri8Mavb4QK_QrqacMjCJIkDDH_oWHyeUDTrpc.