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In a decision with potentially far-reaching implications for youth recreational and educational programs, the Utah Supreme Court on Oct. 30 upheld a lower court’s ruling that a parent cannot contract away a child’s right to sue for negligence. The ruling in Hawkins v. Peart, No. 20000562, invalidated a release and indemnification form signed by a mother on behalf of her 11-year-old daughter shortly before the girl suffered severe facial injuries when she was thrown from a rented horse. The standard-form agreement was used by the defendant, a riding company called Navajo Trails, to shield itself from liability for anything short of gross negligence or willful misconduct. Writing for the high court, Justice Matthew B. Durrant said, “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.” Striking the agreement’s indemnity clause, which said the girl’s mother would cover Navajo “for any damages paid or assessed” against it as a result of injury to her child, the high court overturned the lower court’s finding that the clause was a valid contract between an adult and a business. “We cannot uphold an agreement that shifts the source of compensation from the negligent party to the minor’s parent,” the court wrote. Citing wide-ranging precedent and public policy, the panel said, “By shifting financial responsibility to a minor’s parent, such indemnity provisions would allow negligent parties to circumvent our newly adopted rule voiding waivers signed on behalf of a minor.” Salt Lake City lawyer Brian S. King, the King & Isaacson partner who represented Hawkins, called the ruling “a great decision.” Although in his opinion releases like the one used by Navajo were generally “viewed with suspicion here in Utah,” King added that, until now, there had been no definitive finding that they were invalid. While he acknowledged the ruling was a victory for children and their families, King didn’t “see this as being a big issue” for recreational businesses. Describing most standard-form releases as “prophylactic in nature,” he added, “I don’t think that businesses and insurance companies have confidence that these [agreements] are enforceable.” Navajo’s attorney, James W. Jensen of Cedar City, Utah’s Jensen, Graff & Barnes, had a different take on the pronouncement. “I thought it was dead wrong,” Jensen said. He said the trial court properly decided the indemnification issue because “you had two consenting adults entering into the agreement.” Calling the ruling “very far-reaching,” Jensen listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. “Anybody that provides recreational activities to minors,” he said.Although no amicus briefs were filed, Jensen said many individuals have urged him to move for a rehearing or to petition the U.S. Supreme Court for review.

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