New Mexico law on liability releases for “future negligence,” (something that may or may not happen in the future), and the legal ability of the parent to release that future liability on behalf of the child is rare among the states. The NM Court of Appeals, on July 11, 2024, narrowly affirmed a trial court’s ruling upholding the validity of a release signed by a parent on behalf of a child.
The child, the business, and alleged negligence
The 10 year-old child, who had three years of experience at the time of the injury, participated in training at a local gymnastics academy. The lawsuit alleged the gymnastics business negligently moved the vaults too close to each other, causing the child to sustain a serious ankle injury when her foot hit a mat as she was completing a vault rather than the protective foam in the landing pit.
Court’s decision and reasoning
A three-judge panel of the appeals court held that the liability waiver was clear and unambiguous to a layperson, and public policy in New Mexico does not prohibit a parent from waiving liability for future negligence on behalf of their minor child in a contract for recreational service.
The court majority called the waiver of liability “overly long and repetitive.” They were also critical of the typeface used but recognized that the parent had signed it electronically and that they could have adjusted the typeface on the screen. But the court, considering all the factors, believed the release was valid.
Public policy
The court noted that most state courts do not allow a parent to waive future liability for negligence on behalf of their child. However, New Mexico follows the common law of contracts, and its policy honors the freedom to contract.
The NM legislature has only set public policy in two areas of liability releases: equine activities and skiing. The court also found that NM respects a parent’s authority to make decisions on behalf of their child, with very limited exceptions. The legislature had not restricted the right of a parent to make important decisions for their child regarding the risks and benefits of various recreational activities. The court stated that it is the domain of the legislature, as the voice of the people, to make public policy — not the courts.
The dissenting judge and things to watch out for
The dissenting judge would not have allowed a parent to waive a potential liability claim for their minor child in circumstances like this case. The judge noted several instances in which parents were not allowed to compromise claims on behalf of their child and that the general statutes of limitation were extended to give minors one full year after they reached majority to make a claim. The judge also believed the waiver’s language was ambiguous and should not be enforced.
The losing party in this case may ask the NM Supreme Court to review the decision and make a final determination. We will keep you posted.
An effective release of future liability requires careful crafting by a partnership involving both the business and its lawyer. We would be delighted to work with you to craft an effective release.
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