Reb Gregg Outdoor Liability Law: Writings

Writings

The Trouble with Minors
By Charles R. Gregg

1. Minors (in all but a few states, persons under 18 years of age) represent unique opportunities and challenges in education and recreation programming.

2. Special risk issues associated with minors.

A. Unpredictable levels of development, attention and comprehension.
B. Medications, sometimes undisclosed
C. Misplaced expectations
D. Behavior issues
E. Coercion issues

3. Operations Issues associated with minors

A. Suitability
B. Sequencing
C. Supervision

4. Duties to minors

A. Duty of care, generally: To act as a reasonable professional would act under the same or similar circumstances.
B. In Loco Parentis: To act as a reasonable parent would act under the same or similar circumstances.
C. Special relationships: custody and control, age, special needs

5. Protection from claims of minors

A. A minor cannot contract for a release, but on becoming an adult may affirm or ratify a release made during minority (including perhaps by mere participation.)
B. Assumption of risks

(1) Expressed assumption (usually in a Participant Agreement)
(2) Primary assumption: the cause of the loss is an inherent risk of the activity. No duty to protect from an inherent risk, including, in an active sport, the risk of negligence by a co-participant or, in some states, an instructor.
(3) Secondary assumption: a duty of care exists, and the minor, aware of the risks, chooses to participate anyway.

C. Inherency of risks (generally, age is not a factor)
D. Contributory fault of the minor
E. In some states a Parent or Guardian my release on behalf of a minor, and indemnify against claims of a minor.

6. Special issues

A. Marketing
B. Privacy rights of minors.
C. How to deal with 18-20 year olds.
D. If parents disagree regarding a minor’s issues?
E. State regulation, and Parens Patriae.

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