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Michael Krzak Talks to the Chicago Tribune About Waivers in Personal Injury Lawsuits by Michael S. Krzak, Partner, Clifford Law Offices

Illinois courts have consistently frowned on the enforceability of waivers when minors are involved and have found them to be unenforceable and against public policy in this type of case. I recently spoke to the Chicago Tribune on this issue for a story on moon walks ("Moon Walk Injuries Skyrocket," Experts Say," Chicago Tribune, April 17, 2013).  In that story, the Chicago Tribune, discussed a recent study that was published in the journal Pediatrics that reported the number of bounce house or moon walk injuries among children nationwide to have increased fifteen-fold from 1995 to 2010. In a sidebar story discussing lawyers' reactions to parents signing waivers if their child gets hurt, I told the Tribune, "the policy in Illinois is 'stark and absolute.'" I went on to tell them that, "The courts go on to say a minor involved in litigation is a ward of the court, and the court has a 'duty and broad discretion to protect the minor's interest.'  And for those reasons, the courts will be reluctant to enforce a signed waiver, even by a parent or guardian, when a minor is involved in the litigation." I based my thinking on established Illinois law  that has found where a minor is involved in litigation is a ward of the court and the court has "a duty and broad discretion to protect the minor's interests." Villalobos v. Cicero School Dist. 99, 362 Ill.App.3d 704, 711-12 (1st Dist. 2005), quoting Wreglesworth v. Arctco, Inc., 316 Ill.App.3d 1023, 1026 (1st Dist. 2000); see also Mastroianni v. Curtis, 78 Ill.App.3d 97, 100 (1st Dist. 1979).  It is the public policy of this state that the rights of minors be guarded carefully. Villalobos, 362 Ill.App.3d at 712, quoting Mastroianni, 78 Ill.App.3d at 100.  Courts in this state are reluctant to enforce contracts against minors, even when executed by their guardians. See e.g., Villalobos, 362 Ill.App.3d at 711-12 where the court found that the "parent has no legal right, by virtue of the parental relationship, to settle a minor's cause of action, and court review and approval of a settlement reached by a parent is mandatory"; see also Wreglesworth, 316 Ill.App.3d at 1028 (parent's execution of a release on behalf of a minor is "unenforceable"); Mastroianni, 78 Ill.App.3d at 99 (court approval required before guardian's act is binding) Still, one needs to be careful before signing any waiver of liability, especially when it involves your children.

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