Cooper v. The Aspen Skiing Company 2002 Colo. LEXIS 528 (Colo. Sup. Ct. 2002) (en banc)

In 1995, 17-year-old David Cooper had been a member of the Aspen Valley Ski Club, Inc., for about nine years and was actively involved in competitive skiing. At the beginning of the 1995-96 ski season, David and his mother signed a form titled "Aspen Valley Ski Club, Inc. Acknowledgment and Assumption of Risk and Release." The release relieved the Ski Club from:

any liability, whether known or unknown, even though that liability may arise out of negligence or carelessness on the part of the persons or entities mentioned above. The undersigned Participant and Parent or Guardian agree to accept all responsibility for the risks, conditions and hazards which may occur whether or not they are now known. . . . [T]he undersigned Participant and Parent or Guardian HEREBYAGREE TO WAIVE, RELEASE, DISCHARGE, INDEMNIFYAND HOLD HARMLESS any and all claims for damages for death, personal injury or property damage which they may have or which may hereafter accrue as a result of any participation in an Aspen Valley Ski Club, Inc. program and related activities and events. . . . By signing this Acknowledgment and Assumption of Risk and Release as the Parent or Guardian, I am consenting to the participant's participation in the Aspen Valley Ski Club, Inc. programs and related activities and acknowledge that I understand that all risk, whether known or unknown, is expressly assumed by me and all claims, whether known or unknown, are expressly waived in advance.

On December 30, 1995, David was training for a competitive, high-speed alpine race. The course had been set by his coach. During a training run, David fell and collided with a tree, sustaining severe injuries, including the loss of vision in both eyes. David brought suit against The Aspen Skiing Company, The Aspen Valley Ski Club, his coach, and the United States Ski Association. The trial court ruled that his mother's signature on the release bound David to the terms of the release, and it barred his claims against the Ski Club and the coach. The Colorado Court of Appeals affirmed, and David appealed.

RICE, Justice.   We must first determine whether Colorado's public policy allows parents to contractually release their child's future claims for injury caused by negligence. While it is a well-settled principle that a minor during his minority, and acting timely on reaching his majority, may disaffirm any contract that he may have entered into during his minority, we have never specifically addressed whether a parent or guardian may release a child's cause of action on his behalf or whether Colorado's public policy allows a parent or guardian to serve as indemnitor for his minor child's claims against an indemnitee.

The General Assembly has demonstrated an ongoing commitment to afford minors significant safeguards from harm by passing numerous statutes designed to protect minor children. Most significant of these for purposes of this case are the protections accorded minors in Colorado in the post-injury claim context. Colorado laws do not allow a parent the unilateral right to foreclose a child's existing cause of action to recover for torts committed against him. Indeed, the Colorado Probate Code creates mechanisms for the appointment of a conservator to protect a minor's settlement claim rights. It also provides minors important protections by creating means by which the court may ratify the settlement of a minor's claims. Importantly, a parent may not act as a minor's conservator as a matter of right, but only when appointed by the court.

Thus, we agree with the Utah Supreme Court and the Washington Supreme Court—both of which recently analyzed the same issue presented here—that since a parent generally may not release a child's cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child's cause of action prior to an injury.

It may be true that parents in the pre-injury setting have less financial motivation to sign a release than a parent in the post-injury setting who needs money to care for an injured child. Nonetheless, the protections accorded minors in the post-injury setting illustrate Colorado's overarching policy to protect minors, regardless of parental motivations, against actions by parents that effectively foreclose a minor's rights of recovery. Thus, while a parent's decision to sign a pre-injury release on his child's behalf may not be in "deliberate derogation of his child's best interests," Purdy, 68 Wis. L. Rev. 457, 474 (1963), the effect of a release on the child in either the pre-injury or the post-injury one is the same. If the parents are unwilling or unable to care for an injured child, he may be left with no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child's rights might occur. In addition, while pre-injury releases might be less vulnerable to mismanagement, children still must be protected against parental actions—perhaps rash and imprudent ones—that foreclose all of the minor's potential claims for injuries caused by another's negligence.

To allow a parent or guardian to execute exculpatory provisions on his minor child's behalf would render meaningless the special protections historically accorded minors. In the tort context especially, a minor should be accorded protection not only from his own improvident decision to release his possible prospective claims for injury based on another's negligence, but also from unwise decisions made on his behalf by parents who are routinely asked to release their child's claims for liability. Aminor is accorded special protection, and to allow a parent to release a child's possible future claims for injury caused by negligence may as a practical matter leave the minor in an unacceptably precarious position with no recourse, no parental support, and no method to support himself or care for his injury. Our holding comports with the vast majority of courts that have decided the issue.

Finally, we consider the validity of parental indemnity provisions. As a practical matter, release and indemnity provisions in contracts signed by parents or guardians on behalf of their minor children go hand-in-hand; having invalidated release provisions, it would be contradictory to then effectively undercut a minor's rights to sue by allowing indemnity clauses that make such suits for all realistic purposes unlikely. We agree with the reasoning of those courts invalidating parental indemnity provisions that a minor child would be unlikely to pursue claims if his parent or guardian served as the ultimate source of compensation for the negligent party's torts, and that—if the child did bring a cause of action—family discord would likely result. Moreover, the effect of a parental indemnity agreement—to assure that a negligent party will not be held financially responsible for that party's torts committed against a minor—undermines a parent's duty to protect the best interests of the child. Thus, we also agree with the Utah Supreme Court that parental indemnity provisions can only serve to undermine the parent's fundamental obligations to the child. Therefore, we also hold that parental indemnity provisions violate Colorado's public policy to protect minors and create an unacceptable conflict of interest between a minor and his parent or guardian.

Reversed in favor of David.