Parent cannot contract away child's right to sue.

A child can file an action even if his or her parent has signed a release that purports to contract away the child's right to sue, the Utah Supreme Court has ruled. (Hawkins v. Peart, No. 20000562, 2001 WL 1326999 (Utah Oct. 30, 2001).)

"The court recognized the unfairness of asking kids to bear the loss caused by the negligent actions of a tortfeasor," said Brian King of Salt Lake City, who represented the plaintiff. "My hope is that this decision keeps businesses from even trying to obtain releases from parents on behalf of their children."

The decision upheld a lower court ruling that invalidated a waiver in a release form used by a horseback-riding company.

Eleven-year-old Jessica Hawkins was thrown from a horse during a trail ride and injured. The riding company, Navajo Trails, had required her mother to sign a release before it would allow Jessica to ride one of its horses. When Jessica later sued Navajo Trails for negligence, the company moved for summary judgment, claiming that the release precluded the lawsuit.

Writing for the state high court, Judge Matthew Durrant noted that although there is a general rule allowing releases, "a clear majority of courts treating the issue have held that a parent may not release a minor's prospective claim for negligence." Endorsing this view, Durrant wrote, "Navajo Trails has cited no source of law, and we are aware of none, granting parents in Utah a general unilateral right to compromise or release a child's existing causes of action without court approval or appointment to that effect."

King said the case addresses a problem that parents and consumers see on a regular basis.

"Business and recreational sponsors from schools to soccer clubs to the local birthday-party rent-a-pony business demand that we sign these releases," King said. "I hope other plaintiffs and their lawyers use the case to successfully challenge these releases in other jurisdictions."