Earlier this month I reported that the the Kentucky Supreme Court recently found that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. See here.
Now comes news that, in a case called Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230, the Utah Supreme Court held that a parent cannot release his or her minor child's prospective claims for negligence unless this rule is altered by a statute enacted to make such releases enforceable.
Showing posts with label Kentucky. Show all posts
Showing posts with label Kentucky. Show all posts
Wednesday, July 31, 2019
Friday, July 5, 2019
Can a parent sign away a child's rights by signing a waiver of liability? Not in Kentucky (and many other states)
Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times! Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a "waiver" before the child can be allowed to do so. Will those waivers really work to prevent a lawsuit? Are they a valid form of contract that can be argued support a defense of express assumption of the risk. Not in many states. (I have not done a state by state survey, but I suspect this would be the case in a majority of states.)
The Torts Prof blog is reporting that the Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015. The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park. The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf." The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable. WDRB.com has a little more on the story.
The Torts Prof blog is reporting that the Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015. The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park. The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf." The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable. WDRB.com has a little more on the story.
Monday, December 24, 2018
Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys
Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted. My most recent post on this is here. Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief"). In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches: requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.
In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.
The case in Mississippi is called Trigg v. Farese, and you can read the opinion here. In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."
The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here. In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."
In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.
The case in Mississippi is called Trigg v. Farese, and you can read the opinion here. In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."
The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here. In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."
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