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Enforcing Parental Waivers in Mississippi

Mississippi has yet to enforce a parental waiver or indemnification agreement involving liability.  Nor has the state legislature passed legislation providing for or preventing the enforcement of parental waivers.  For example, in Quinn v. Mississippi State University, the Mississippi Supreme Court passed on an opportunity to declare such agreements to be unenforceable. 720 So.2d 843 (Miss. 1998) (overruled on other grounds).

Quinn involved a boy that was accidentally struck with a bat by an instructor at the Mississippi State Baseball Camp. Id. at 845.  The father and the boy had signed a pre-participation waiver. Id. The waiver stated in part:

The undersigned applicant and parent/guardian understand that the applicant will be engaging in physical activity during the program which contains an inherent risk of physical injury and the undersigned assumes the risk, indemnifies, and releases Mississippi State Baseball Camp, its officers, Directors, Agents, and Employees from any and all liability for personal injury arising out of the applicant’s participation in the Camp program. Id. at 845.

In construing the waiver against the drafting party (Mississippi State University), the court held that reasonable minds could differ as to the risks the plaintiffs were assuming.  Id. at 851.  The court, after finding the release to be ambiguous, went on to add that “[c]lauses that limit liability…are not to be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.”  The court concluded by holding, “[a] party cannot use an anticipatory release to escape liability for tortious acts.”  Id. at 851 (citing Farragut v. Massey, 612 So. 2d 325, 329 (Miss. 1992)).

Despite the court’s refusal to enforce the release, at no point in the discussion did the court allude to or suggest that waivers signed by parents on behalf of a minor child are not enforceable.  Id.  At issue in the release signed by the boy and his father was the blanket immunity provided by the broad all-encompassing language.  Id. Ultimately, the court’s main concern was preventing such a broad overreaching waiver from allowing “unanticipated tortious acts to go without a remedy simply because a release had to be signed before a person could participate in an activity.”  Id.  Notwithstanding the court’s obvious aversion to broad, ill-defined, and overreaching waivers, Mississippi courts have yet to rule on a precisely written narrowly tailored release and accordingly such a well-crafted waiver’s fate is unknown.

The authors of Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools, predict that Mississippi will be among the growing number of states enforcing parental waivers.[1]  Referencing Quinn, the authors found because the Mississippi Supreme court refused to explicitly declare parental waivers invalid, Mississippi courts may be inclined to enforce a well drafted parental waiver.[2]  Nevertheless, Justice McRae’s dissent in Quinn, declaring neither minors nor their representatives can waive the rights of a minor, provides strong support for the argument against the enforceability of parental waivers in Mississippi.  Id. at 853 (citing Price v. Crone, 44 Miss. 571, 577 (Miss. 1871); Khoury v. Saik, 33 So. 2d 616, 618 (Miss. 1948)).  Notwithstanding Justice McRae’s dissent, the Mississippi Supreme Court has yet to expressly invalidate parental waivers, and accordingly, a well-crafted, narrowly tailored waiver properly authorized and administered may be enforceable.

[1] Doyice J. Cotton & Sarah J. Young, SYMPOSIUM: RISK MANAGEMENT ISSUES IN SPORTS: Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools, 17 J. Legal Aspects Of Sport 53 at*62.

[2] Id. at* 66.

Authored by: Benjamin Z. (Ben) Claxton, Sr.