Kindly Remove My Child from the Bubble Wrap - Analyzing Childress v. Madison County and Why Tennessee Courts Should Enforce Parental Pre-Injury Liability Waivers

Fall 2016, Volume 11, Issue: 2 Tennessee Journal of Law and Policy 8

75 Pages Posted: 28 Feb 2017 Last revised: 17 Mar 2017

Date Written: November 27, 2016

Abstract

Is a liability release a parent executes on behalf of her minor child enforceable? Historically, the answer to that question is “no,” and the relatively few state courts that had dealt with the issue before the mid-1990s, including Tennessee, held that such a liability release violates public policy. Therefore, under that approach, such a parental liability release is unenforceable and does not bar the minor’s right to sue. The foregoing rule derives from the view that the state has an interest in protecting minors that supersedes the decisions of a parent, guardian, and even the minor child himself. To that end, most courts – including a single Tennessee Court of Appeals decision from 1989 – have relied on the following two rules: (1) a parent is prohibited from settling her minor child’s existing lawsuit without court approval; and (2) a minor child can avoid a contract he or she directly enters, so no one else should be allowed to contract on his or her behalf. Accordingly, courts have historically held that allowing a parent to waive her child’s right to file a lawsuit for a future injury conflicts with those principles and public policy favoring the state’s plenary authority to protect minors. However, the United States Supreme Court’s relatively recent recognition of a fundamental parental privacy right guaranteed by the United States Constitution now arguably changes things significantly. Indeed, we submit there has been a strong shift favoring enforcement of such parental liability releases on the basis of the newly recognized parental rights doctrine. In other words, many courts are now concluding that, when a parent executes a parental liability release on behalf of her child, she is exercising her fundamental decision-making authority as a parent. As a result, her constitutional rights as a parent now supersede the state’s power to overturn her decision to execute a parental liability release. In Kindly Remove My Child From the Bubble Wrap, we summarize the development of the law in these areas in Tennessee and other jurisdictions. Ultimately, we believe that the law now supports the conclusion that parental liability releases are not against public policy, and parents should be allowed to remove their children from the proverbial “bubble wrap.”

Keywords: Minor liability waivers, minors, waivers, exculpatory agreements

JEL Classification: K10

Suggested Citation

Arters, Joshua and Rose, Ben, Kindly Remove My Child from the Bubble Wrap - Analyzing Childress v. Madison County and Why Tennessee Courts Should Enforce Parental Pre-Injury Liability Waivers (November 27, 2016). Fall 2016, Volume 11, Issue: 2 Tennessee Journal of Law and Policy 8. Available at SSRN: https://ssrn.com/abstract=2924476

Joshua Arters

RoseArters, PLLC ( email )

Post Office Box 1108
Brentwood, TN 37024
United States

Ben Rose (Contact Author)

RoseArters, PLLC ( email )

Post Office Box 1108
Brentwood, TN 37024
615-942-8295 (Phone)

HOME PAGE: http://www.bmrfirm.com

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