Minnesota high court asked to invalidate childhood injury waiver

ST. PAUL, Minn. (CN) — The Minnesota Supreme Court heard arguments Wednesday in the case of a man injured 15 years ago on an inflatable obstacle course, considering questions of whether a waiver his mother signed at the time protected the inflatable's now-defunct owner from liability. 

The case regarded a head injury suffered by Carter Justice, then 7 years old, when he fell from an inflatable at a birthday party and landed on carpeted concrete. Justice’s mother signed a waiver before her son started bouncing. In 2018, when Justice turned 18, he brought a suit arguing that the injury had caused lasting brain damage and that the waiver was not specific enough to preclude claims against the operator, a franchise of the now-disbanded Marvel LLC.

A district court dismissed Justice’s claims and he did not find better luck at the Minnesota Court of Appeals. The Minnesota Supreme Court granted certification to his appeal in order to address whether parents could waive their children’s right to tort claims and whether a 2010 change to state law to limit the use of such waivers should apply retroactively. 

“This case is about every parent’s worst nightmare, come to life,” Justice’s attorney Mahesha Subbarman told the court Wednesday. A lack of safety mats or other protective measures around the inflatable, he said, made Justice’s head injury the result of Marvel’s negligence – exactly the kind of claims the 2010 law said waivers could not preclude.

Beyond that, Subbarman said, the language of the waiver was ambiguous, not specifically name-checking negligence. Rather, he said, it listed circumstances that did not include negligence as claims that parents were waiving, then expanded the waiver’s scope to include “all claims” in a short portion late in the waiver. 

“Unless there is some specificity to put the signer on notice as to what they are waiving, then the presumption should be that the waiver is unenforceable,” Subbarman said. 

Arguing for Marvel, attorney Joseph Nilan said that negligence need not be specifically named to be covered. “The ambiguity argument today has been twisted,” he said. 

In court and in a post-hearing interview, Nilan compared the inflatable waiver to those signed for many other activities, including school sports and skiing.

“In almost every recreational activity – baseball, hockey, downhill skiing – where children go to participate, their parents have to sign a consent form that says ‘if my child gets hurt playing baseball at your baseball camp, we’re not going to sue you,’” he said in an interview. “The plaintiff’s asking the Supreme Court to invalidate that.”

The Minnesota Ski Areas Association filed an amicus brief in the case in favor of Marvel, pointing out that as a relatively mountain-poor state, Minnesota has no laws specific to skiing and further restrictions of liability waivers could harm the state’s skiers and skiing areas. 

“Appellant’s position is founded on a deep disregard for the role of parents in guiding a child’s development, and specifically for their right to decide what recreational activities are appropriate for the family and under what circumstances a child may participate,” the association’s attorneys Brian Johnson and Cortney Sylvester of Nilan Johnson Lewis – not to be confused with Joseph Nilan’s firm, Gregerson Rosow Johnson & Nilan, whose partners include a different Johnson and Nilan – wrote in their brief. 

Subbarman, however, argued that requiring more specificity for waivers would only bring Minnesota up to scratch with a majority of other states, including its southern neighbor of Iowa.

“Upholding the waiver at issue here would make Minnesota the least child-protective state in the nation,” he said. 

Nilan dismissed that claim as an unsubstantiated sound bite, and pointed out that the legislature, rather than the judiciary, makes laws. The justices, too, paid little attention to the contention, but did delve heavily into whether the waiver needed more clarity to apply. 

“When I look at the waiver language here, I’m just troubled, frankly,” Justice Margaret Chutich said to Nilan. “It refers to… the inherent risks… and then it also talks about risks that may arise out of the negligence of other participants. And then in the third clause it does talk about holding harmless Marvel from any and all claims… but it doesn’t talk about Marvel at all, much less Marvel’s negligence."

“I think that’s a problem,” she added. 

Chutich’s remarks led Justice Paul Thissen to take a similar tack.

“What’s an inherent risk here?” he asked. He also pointed out that a child, regardless of waivers, “does not have the ability to regulate their behavior in the same sense” that an adult would.

Subbaraman provided a brief statement in response to a request for comment, calling the case “an important one for parents and the safety of children across Minnesota.” He praised the court’s questions as showing “a deep appreciation of what is at stake here,” and said he hoped they would “reaffirm the court’s longstanding commitment to putting children first.”

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