In the move to reopen the physical locations of businesses in the wake of COVID-19, many states have set forth rules requiring that businesses strictly follow all safety guidelines and recommendations promulgated by the U.S. Centers for Disease Control and Prevention (CDC). Even with strict adherence to state and government guidelines, however, businesses are facing enormous risks of potential liability for exposing individuals to COVID-19. This is particularly true for businesses that deal primarily with children—including party centers, camps, recreation centers, soccer clubs, and pools—as these businesses typically have frequent face-to-face contact and hands-on interaction. With school districts publishing their reopening plans for the Fall, businesses that serve minors are watching closely.
To protect against liability, some businesses may consider drafting liability waivers in an attempt to insulate themselves against liability due to COVID-19 infection (COVID-19 Liability Waivers). Liability waivers, though typically enforced against adult individuals, have sometimes been extended to minors—through the signature of a parent/guardian—to protect businesses such as camps, sports clubs, and daycare centers.
This Alert provides a very brief overview of basic legal principles related to enforcing COVID-19 Liability Waivers signed on behalf of minors. Although there is uncertainty related to the general enforceability of COVID-19 Liability Waivers, the information below may be instructive for parties seeking to draft and enforce such a waiver in the context of minors.
As a general matter, a liability waiver signed only by a minor is not enforceable in any state. This is due to the common law rule that a contract signed by a minor is voidable by the minor until he or she reaches the age of majority.1 Because the only recognized exception to this rule is a contract of necessity—i.e., contracts for items and services necessary to a minor’s health and safety such as food, clothing, and lodging—a minor would not be legally bound to a liability waiver executed solely by the minor. Rather, such a waiver would be unenforceable as against public policy.
Some states do, however, recognize the validity of contracts signed by parents and/or guardians on behalf of their minor children. This principle can extend to liability waivers and exculpatory clauses. For example, Colorado specifies that it is the public policy of the state that parental choices on behalf of children should be enforced, provided that the decision is voluntary and informed. Colo. Rev. Stat. § 13-22-107. In Florida, “natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.” Fla. Stat. § 744.301.2
Although not expressly provided by statute, other state courts have found that liability waivers signed by parents on behalf of their minor child(ren) are valid and enforceable. See, e.g., Zivich v....
