Recreational providers are making it their practice to have patrons sign a waiver before participating in any activity where there is even the slightest risk of an injury. Parents must sign on behalf of their minor children, and many people believe that in doing so, they have waived the rights of their dependents. In Texas, that is not the case, as pre-injury waivers cannot be used to deny a child his or her rights.
What Does a Pre-Waiver Do?
A waiver simply provides the operator with peace of mind, because he or she is banking on the fact that people will believe they have signed away their rights to damages. Courts have ruled that these waivers are in fact a breach of public policy because they can result in negligent actions by the party seeking them. As such, these parties are still required to use safe practices when conducting their business, and can be held responsible for failing to do so.
Limitations of Child Injury Waivers
Although parents cannot waive the rights of their children, there could nonetheless be some restrictions involved. A few of these restrictions include:
- Agreeing to binding arbitration if this is clearly stated in the waiver
- Prohibiting recovery if the child acted in an unsafe manner
- Limiting the amount of damages if the waiver was signed after the fact
Any waivers that limit the amount of damages or mandate arbitration take place must clearly state this in unambiguous language. In other words, it must be clear to parents exactly what they are signing in order for an agreement to be enforceable. Texas law determines clauses in contracts to be conspicuous when they are printed in bold type, all caps or extra-large letters. The clause should be written in a manner so that a “reasonable person” will automatically notice it.
Unequal Bargaining Power
In many cases, the reason why a child’s rights cannot be waived is because the party requesting the waiver has “unequal bargaining power” in the eyes of the law. For example, a school that is requesting a waiver for a “mandatory” activity such as a field trip would not be enforceable, because the school would be in a position to “coerce” the student to sign simply because of their unique position of authority.
Asking parents to sign away the rights of their children is unconscionable, which is why Texas courts have ruled it so. Parents of children who have been injured should know that relief could be available, regardless of whether or not a waiver exists.
Getting Legal Assistance
The first step in the event of any injury is to seek out a qualified personal injury attorney. He can look at the details of your case to determine if you should pursue legal action. Schedule your free case evaluation today by calling 713.766.5400.
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