Zivich v. Mentor Soccer Club, Inc.

[This opinion has been published in Ohio Official Reports at 

82 Ohio St.3d 367

.]




ZIVICH ET AL., APPELLANTS, v. MENTOR SOCCER CLUB, INC., APPELLEE, ET AL.
           [Cite as Zivich v. Mentor Soccer Club, Inc., 

1998-Ohio-389

.]
Torts—Negligence—Parents have authority to bind their minor children to
        exculpatory agreements in favor of volunteers and sponsors of nonprofit
        sport activities where the cause of action sounds in negligence—
        Agreements may not be disaffirmed by the child on whose behalf they were
        executed—Parents may release own claim arising out of injury to their
        minor children.
1.      Parents have the authority to bind their minor children to exculpatory
        agreements in favor of volunteers and sponsors of nonprofit sport activities
        where the cause of action sounds in negligence. These agreements may not
        be disaffirmed by the child on whose behalf they were executed.
2.      Parents may release their own claims arising out of injury to their minor
        children.
        (No. 97-1128—Submitted April 21, 1998—Decided June 29, 1998.)
        APPEAL from the Court of Appeals for Lake County, No. 95-L-184.
                                  __________________
        {¶ 1} In May 1993, appellant Pamela Zivich registered her seven-year-old
son, appellant Bryan Zivich, for soccer with Mentor Soccer Club, Inc. (“Club”),
appellee, for the 1993-1994 season. The Club is a nonprofit organization that
provides children in the greater Mentor area with the opportunity to learn and play
soccer. The Club is primarily composed of parents and other volunteers who
provide their time and talents to help fulfill the Club’s mission. The Club’s
registration form, signed by Mrs. Zivich, contained the following language:
        “Recognizing the possibility of physical injury associated with soccer and
for the Mentor Soccer Club, and the USYSA [United States Youth Soccer
                                  SUPREME COURT OF OHIO




Association] accepting the registrant for its soccer programs and activities, I hereby
release, discharge and/or otherwise indemnify the Mentor Soccer Club and the
USYSA, its affiliated organizations and sponsors, their employees, and associated
personnel, including the owners of the fields and facilities utilized by the Soccer
Club, against any claim by or on behalf of the registrant as a result of the registrant’s
participation in the Soccer Club * * *.”
         {¶ 2} On October 7, 1993, Bryan attended soccer practice. During practice,
the boys participated in an intrasquad scrimmage. Bryan’s team won. After the
scrimmage, Bryan ran to his father, who was standing on the sidelines and talking
with the coach. Excited about the win, Bryan, unsupervised, jumped on the goal
and swung back and forth on it. The goal, which was not anchored down, tipped
backward. Bryan fell, and the goal came down on his chest, breaking three of his
ribs and collarbone, and severely bruising his lungs.
         {¶ 3} In January 1995, Bryan’s parents, Philip and Pamela Zivich,
appellants, sued the Club1 for injuries sustained by Bryan. The complaint alleged
negligence and reckless misconduct.2 The Club moved for summary judgment on
the ground that the release executed by Bryan’s mother barred the claims. The trial
court agreed and granted the Club’s summary judgment motion.
         {¶ 4} The court of appeals affirmed, albeit partly on different grounds. In
Judge Nader’s majority opinion, in which Judge Christley “reluctantly” joined, he
said that the exculpatory agreement was effective against Mr. and Mrs. Zivich, but
not against Bryan. Thus, while the trial court was correct to grant summary
judgment, Bryan still had a cause of action which a guardian could bring on his
behalf or which he could assert once he gained the age of majority. Judge Nader



1. Appellants also sued the city of Mentor, which owned the park where practice was held. The
city settled with appellants, and this court dismissed it from the lawsuit in December 1997. 

80 Ohio St.3d 1474

, 

687 N.E.2d 471

.
2. Other claims were asserted, but they are not at issue here.




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                                      January Term, 1998




acknowledged the public policy in favor of enforcing the agreement against Bryan,
but found that that decision was best left to the General Assembly or this court.
Additionally, Judge Nader’s majority opinion found no evidence to support the
willful and wanton misconduct claim. Concurring in the result only, Judge Ford
opined that the public policy of Ohio favors enforcement of the agreement against
Bryan as well as his parents. Judge Christley “wholehearted[ly] endorse[d]” the
policy advocated by Judge Ford, but agreed with Judge Nader that the issue should
be resolved by the General Assembly or this court.
         {¶ 5} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                     __________________
         Svete, McGee & Carrabine Co., L.P.A., and James W. Reardon, for
appellants.
         Reminger & Reminger Co., L.P.A., George S. Coakley, Laura M. Sullivan
and Brian D. Sullivan, for appellee.
                                     __________________
         FRANCIS E. SWEENEY, SR., J.
         {¶ 6} We are asked to decide whether the exculpatory agreement3 executed
by Mrs. Zivich on behalf of her minor son released the Club from liability for the
minor child’s claims and the parents’ claims as a matter of law. We find that the
exculpatory agreement is valid as to all claims.                     Summary judgment was
appropriately entered in the Club’s favor. The judgment of the court of appeals is
affirmed.



3. The words “release,” “waiver” and “exculpatory agreement” have been used interchangeably by
the courts. These defenses are based on contract principles. “Exculpatory agreements, also called
‘releases’ or ‘waivers,’ are basically written documents in which one party agrees to release, or
‘exculpate,’ another from potential tort liability for future conduct covered in the agreement.” King,
Exculpatory Agreements for Volunteers in Youth Activities—The Alternative to “Nerf”
Tiddlywinks (1992), 

53 Ohio St. L.J. 683

.




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                             SUPREME COURT OF OHIO




       {¶ 7} Pursuant to Civ.R. 56, summary judgment is appropriate when (1)
there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, said party being
entitled to have the evidence construed most strongly in his favor. Horton v.
Harwick Chem. Corp. (1995), 

73 Ohio St.3d 679

, 

653 N.E.2d 1196

, paragraph three
of the syllabus. The party moving for summary judgment bears the burden of
showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. Dresher v. Burt (1996), 

75 Ohio St.3d 280, 292-293

,

662 N.E.2d 264, 273-274

.
       {¶ 8} Appellants argue that since practice had concluded, the injury
occurred outside the scope of the exculpatory agreement. We find this contention
meritless. We quote, with approval, Judge Nader’s majority opinion rejecting this
argument: “It should not come as any great surprise for a parent to learn that, during
a period of inactivity at a soccer practice, his or her child fiddled with loose
equipment, climbed on nearby bleachers, or scaled the goal. It should be equally
clear that coaches supervising the practices will not be able to completely prevent
such unauthorized activity, as some degree of bedlam is unavoidable, when children
of tender years are brought together to play a game, and when their emotions are
aroused. The risk of a seven[-]year[-]old child climbing on a goal shortly after
winning an intrasquad scrimmage is, therefore, a natural incident of his
participation in soccer practice. Thus, Bryan’s injuries fall within the ambit of the
release.”
       {¶ 9} We next consider whether the release is valid. With respect to adult
participants, the general rule is that releases from liability for injuries caused by
negligent acts arising in the context of recreational activities are enforceable.
Bowen v. Kil-Kare, Inc. (1992), 

63 Ohio St.3d 84, 90

, 

585 N.E.2d 384, 390

;
Simmons v. Am. Motorcyclist Assn., Inc. (1990), 

69 Ohio App.3d 844, 846

, 591



                                          4
                                      January Term, 

1998 N.E.2d 1322

, 1324; Cain v. Cleveland Parachute Training Ctr. (1983), 

9 Ohio App.3d 27

, 9 OBR 28, 

457 N.E.2d 1185

. These holdings recognize the importance
of individual autonomy and freedom of contract. Here, however, the exculpatory
agreement was executed by a parent on behalf of the minor child.
         {¶ 10} Appellants contend that the release is invalid on public policy
grounds. In support of their argument, they refer to the general principle that
contracts entered into by a minor, unless for “necessaries,” are voidable by the
minor, once the age of majority is reached, or shortly thereafter. Restatement of
the Law 2d, Contracts (1979), Sections 7, 12, and 14, and Comment f to Section 12.
Appellants urge us to apply the seminal case of Wagenblast v. Odessa School Dist.
No. 105-157-166J (1988), 

110 Wash.2d 845, 851-852

, 

758 P.2d 968, 971

, where
the Washington Supreme Court relied upon Tunkl v. Regents of Univ. of California
(1963), 

60 Cal.2d 92

, 

32 Cal.Rptr. 33

, 

383 P.2d 441

, and set forth a six-part test to
determine whether a particular release violates public policy. The Club, however,
argues that the proper focus is not whether the release violates public policy but
rather that public policy itself justifies the enforcement of this agreement. This is
also the position advocated by Judge Ford in his concurring opinion. We agree
with the Club and Judge Ford.4
         {¶ 11} The General Assembly has enacted statutes designed to encourage
landowners to open their land to public use for recreational activities without fear
of liability. Moss v. Dept. of Natural Resources (1980), 

62 Ohio St.2d 138, 142

,

16 O.O.3d 161, 164

, 

404 N.E.2d 742, 745

. See R.C. 1533.18 and 1533.181, which
together provide that private entities that hold land open for recreational use without
charge are immune from tort liability for any injury caused by a recreational user.


4. The majority opinion stated that an intermediate appellate court was not the appropriate forum
to decide public policy. However, in a common-law system, a judicial decision declaring the rights
of the parties can be based on several grounds, one of which is public policy. Hopkins, Public Policy
and the Formation of a Rule of Law (1971), 37 Brooklyn L.Rev. 323, 330. Therefore, public policy
is an appropriate device to be used by an appellate court to decide a case.




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                                  SUPREME COURT OF OHIO




Then, in 1996, R.C. 2305.381 and 2305.3825 were enacted, effective January 27,
1997. Together, these statutes accord qualified immunity to unpaid athletic coaches
and sponsors of athletic events. Hence, the General Assembly has articulated its
intent of encouraging the sponsorship of sports activities and protecting volunteers.
However, R.C. 2305.381 and 2305.382 were enacted after this cause of action
arose. Thus, our role is to render a decision that fills the gap left open before the
effective date of the statutory enactments.
         {¶ 12} It cannot be disputed that volunteers in community recreational
activities serve an important function. Organized recreational activities offer
children the opportunity to learn valuable life skills. It is here that many children
learn how to work as a team and how to operate within an organizational structure.
Children also are given the chance to exercise and develop coordination skills. Due
in great part to the assistance of volunteers, nonprofit organizations are able to offer
these activities at minimal cost. In fact, the American Youth Soccer Organization
pays only nineteen of its four hundred thousand staff members. The Little League
pays only seventy of its 2.5 million members. See King, Exculpatory Agreements
for Volunteers in Youth Activities—The Alternative to “Nerf” Tiddlywinks (1992),
53 Ohio St.L.J. 683, 759, fns. 208 and 209. Clearly, without the work of its
volunteers, these nonprofit organizations could not exist, and scores of children
would be without the benefit and enjoyment of organized sports. Yet the threat of
liability strongly deters many individuals from volunteering for nonprofit
organizations.       Developments in the Law—Nonprofit Corporations—Special
Treatment and Tort Law (1992), 105 Harv.L.Rev. 1667, 1682. Insurance for the
organizations is not the answer, because individual volunteers may still find



5. Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, 3931. Our statutory law is in line with the
many “volunteer statutes” passed by other states. See McCaskey and Biedzynski, A Guide to the
Legal Liability of Coaches for a Sports Participant’s Injuries (1996), 6 Seton Hall J. of Sport L. 7,
62-63 (citing statutes).




                                                 6
                                January Term, 1998




themselves potentially liable when an injury occurs. Markoff, Liability Threat
Looms: A Volunteer’s Thankless Task (Sept. 19, 1988), 11 Natl.L.J. 1, 40. Thus,
although volunteers offer their services without receiving any financial return, they
place their personal assets at risk. See Developments, supra, 105 Harv.L.Rev. at
1692.
        {¶ 13} Therefore, faced with the very real threat of a lawsuit, and the
potential for substantial damage awards, nonprofit organizations and their
volunteers could very well decide that the risks are not worth the effort. Hence,
invalidation of exculpatory agreements would reduce the number of activities made
possible through the uncompensated services of volunteers and their sponsoring
organizations.
        {¶ 14} Therefore, we conclude that although Bryan, like many children
before him, gave up his right to sue for the negligent acts of others, the public as a
whole received the benefit of these exculpatory agreements. Because of this
agreement, the Club was able to offer affordable recreation and to continue to do
so without the risks and overwhelming costs of litigation. Bryan’s parents agreed
to shoulder the risk. Public policy does not forbid such an agreement. In fact,
public policy supports it. See Hohe v. San Diego Unified School Dist. (1990), 

224 Cal.App.3d 1559, 1564

, 

274 Cal.Rptr. 647, 649

. Accordingly, we believe that
public policy justifies giving parents authority to enter into these types of binding
agreements on behalf of their minor children. We also believe that the enforcement
of these agreements may well promote more active involvement by participants and
their families, which, in turn, promotes the overall quality and safety of these
activities. See King, supra, 53 Ohio St. L.J. at 709.
        {¶ 15} Another related concern is the importance of parental authority.
Judge Ford’s concurring opinion also embraces this notion. Citing In re Perales
(1977), 

52 Ohio St.2d 89, 96

, 

6 O.O.3d 293, 296-297

, 

369 N.E.2d 1047, 1051, fn. 9

; In re Murray (1990), 

52 Ohio St.3d 155, 157

, 

556 N.E.2d 1169, 1171

; and State




                                          7
                              SUPREME COURT OF OHIO




ex rel. Heller v. Miller (1980), 

61 Ohio St.2d 6, 8

, 

15 O.O.3d 3, 4-5

, 

399 N.E.2d 66, 67

, Judge Ford found that the right of a parent to raise his or her child is a natural
right subject to the protections of due process. Additionally, parents have a
fundamental liberty interest in the care, custody, and management of their
offspring.   Further, the existence of a fundamental, privacy-oriented right of
personal choice in family matters has been recognized under the Due Process
Clause by the United States Supreme Court. See Meyer v. Nebraska (1923), 

262 U.S. 390

, 

43 S.Ct. 625

, 

67 L.Ed. 1042

; Santosky v. Kramer (1982), 

455 U.S. 745

,

102 S.Ct. 1388

, 

71 L.Ed.2d 599

.
        {¶ 16} Based upon these protections, Judge Ford believes that many
decisions made by parents “fall within the penumbra of parental authority, e.g., the
school that the child will attend, the religion that the child will practice, the medical
care that the child will receive, and the manner in which the child will be
disciplined.” He found it notable that the law empowers a parent to consent to
medical procedures for a minor child (R.C. 2317.54[C]), gives a parent the general
authority to decide to decline medical treatment for the child, and destroys the
child’s cause of action for battery when consent is given. See Lacey v. Laird (1956),

166 Ohio St. 12

, 19, 

1 O.O.2d 158

, 161, 

139 N.E.2d 25

, 30 (Hart, J., concurring).
Thus, Judge Ford believes that invalidating the release as to the minor’s claim is
inconsistent with conferring other powers on parents to make important life choices
for their children.
        {¶ 17} Nor is it appropriate to equate a preinjury release with a postinjury
release. As one commentator aptly explains:
        “The concerns underlying the judiciary’s reluctance to allow parents to
dispose of a child’s existing claim do not arise in the situation where a parent waives
a child’s future claim. A parent dealing with an existing claim is simultaneously
coping with an injured child; such a situation creates a potential for parental action
contrary to that child’s ultimate best interests.



                                            8
                                January Term, 1998




       “A parent who signs a release before her child participates in a recreational
activity, however, faces an entirely different situation. First, such a parent has no
financial motivation to sign the release. To the contrary, because a parent must pay
for medical care, she risks her financial interests by signing away the right to
recover damages. Thus, the parent would better serve her financial interests by
refusing to sign the release.
       “A parent who dishonestly or maliciously signs a preinjury release in
deliberate derogation of his child’s best interests also seems unlikely. Presumably
parents sign future releases to enable their children to participate in activities that
the parents and children believe will be fun or educational. Common sense suggests
that while a parent might misjudge or act carelessly in signing a release, he would
have no reason to sign with malice aforethought.
       “Moreover, parents are less vulnerable to coercion and fraud in a preinjury
setting. A parent who contemplates signing a release as a prerequisite to her child’s
participation in some activity faces none of the emotional trauma and financial
pressures that may arise with an existing claim. That parent has time to examine
the release, consider its terms, and explore possible alternatives. A parent signing
a future release is thus more able to reasonably assess the possible consequences of
waiving the right to sue.”       Purdy, Scott v. Pacific West Mountain Resort:
Erroneously Invalidating Parental Releases of a Minor’s Future Claim (1993), 68
Wash.L.Rev. 457, 474.
       {¶ 18} These comments were made in a law review article criticizing the
Washington Supreme Court’s decision in Scott v. Pacific W. Mountain Resort
(1992), 

119 Wash.2d 484

, 

834 P.2d 6

. In that case, the court found that a release,
signed by the mother so that her son could take ski-racing lessons, was invalid as
to the minor’s claim. In Scott, the court had reasoned that it made no sense to treat
a child’s preinjury and postinjury property rights differently. 

Id. at 494

, 

834 P.2d at 11-12

. The article criticized this decision, noting that when the mother signed




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                              SUPREME COURT OF OHIO




the release, she gave her son the opportunity to ski. She gained no financial
advantage for herself, nor did she suffer from fraud or collusion. She was under no
financial or emotional pressure when she signed. The article states that “while she
may have misjudged the risk to her son, Mrs. Scott did not mismanage or
misappropriate Justin’s property. She did her best to protect Justin’s interests, and
the court need not step in to do so.” 

Id.,

 68 Wash.L.Rev. at 474-475.
       {¶ 19} We agree with Judge Ford’s concurring opinion and the reasoning
contained in the foregoing law review article. When Mrs. Zivich signed the release
she did so because she wanted Bryan to play soccer. She made an important family
decision and she assumed the risk of physical injury on behalf of her child and the
financial risk on behalf of the family as a whole. Thus, her decision to release a
volunteer on behalf of her child simply shifted the cost of injury to the parents.
Apparently, she made a decision that the benefits to her child outweighed the risk
of physical injury. Mrs. Zivich did her best to protect Bryan’s interests and we will
not disturb her judgment. In fact, the situation is more analogous to Ohio’s
informed consent law than to the law governing children’s property rights. See R.C.
2317.54(C), which gives parents the authority to consent to medical procedures on
a child’s behalf. In both cases, the parent weighs the risks of physical injury to the
child and the attendant costs to herself against the benefits of a particular activity.
       {¶ 20} Therefore, we hold that parents have the authority to bind their minor
children to exculpatory agreements in favor of volunteers and sponsors of nonprofit
sport activities where the cause of action sounds in negligence. These agreements
may not be disaffirmed by the child on whose behalf they were executed.
       {¶ 21} Having upheld the release agreement against Bryan’s claims, we
find it also valid as to Mr. and Mrs. Zivich’s claims for loss of consortium. Mrs.
Zivich, the signatory on the agreement, acknowledged that she had read its contents
and did not ask any questions about them. Parents may release their own claims
growing out of injury to their minor children. See, e.g., Simmons v. Parkette Natl.



                                          10
                                    January Term, 1998




Gymnastic Training Ctr. (E.D.Pa.1987), 

670 F.Supp. 140, 142

; Childress v.
Madison Cty. (Tenn.App.1989), 

777 S.W.2d 1, 6

; 

Scott, supra,

119 Wash.2d 484

,

834 P.2d 6

. We adopt this rule of law, finding it consistent with principles of
freedom of contract. Thus, we hold that parents may release their own claims
arising out of the injury to their minor children. Accordingly, we find that Mrs.
Zivich is barred from recovery as to her claims.
        {¶ 22} We further find that Philip Zivich’s6 loss of consortium claim is also
barred as a matter of law. Although Mr. Zivich did not personally sign the release
agreement, he accepted and enjoyed the benefits of the contract. In fact, when the
injury occurred, Mr. Zivich was the parent who was at the practice field that
evening. Thus, Mr. Zivich’s conduct conveys an intention to enjoy the benefits of
his wife’s agreement and be bound by it. Under the doctrine of estoppel by
acquiescence, Mr. Zivich may not assert his rights against the Club. Natl. Football
League v. Rondor, Inc. (N.D.Ohio 1993), 

840 F.Supp. 1160, 1167

.
        {¶ 23} As a separate ground for recovery, appellants also contend that the
injury was caused by the Club’s willful and wanton misconduct. In McKinney v.
Hartz & Restle Realtors, Inc. (1987), 

31 Ohio St.3d 244, 246

, 31 OBR 449, 451,

510 N.E.2d 386, 388-389

, this court defined “willful” misconduct as conduct
involving “ ‘an intent, purpose or design to injure.’ ” 

Id.,

 quoting Denzer v.
Terpstra (1934), 

129 Ohio St. 1

, 

1 O.O. 303

, 

193 N.E. 647

, paragraph two of the
syllabus. “Wanton” misconduct was defined as conduct where one “ ‘fails to
exercise any care whatsoever toward those to whom he owes a duty of care, and
[t]his failure occurs under circumstances in which there is a great probability that
harm will result.’ ” McKinney, 

31 Ohio St.3d at 246

, 31 OBR at 451, 

510 N.E.2d at 388-389

, quoting Hawkins v. Ivy (1977), 

50 Ohio St.2d 114

, 

4 O.O.3d 243

, 363


6. In the court of appeals, Mr. Zivich also argued that summary judgment was improper as to his
claim for negligent infliction of emotional distress. However, he does not raise this claim here.
Accordingly, we do not address this issue.




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                            SUPREME COURT OF OHIO




N.E.2d 367, syllabus. We have held that while a participant in recreational
activities can contract with the proprietor to relieve the proprietor from any
damages or injuries he may negligently cause, the release is invalid as to willful
and wanton misconduct. 

Bowen, supra,

63 Ohio St.3d at 90

, 

585 N.E.2d at 390

.
       {¶ 24} To support this claim, appellants assert that the Club’s former
president, David Bolsen, attended a seminar just before his term of office ended. It
was at the seminar that he learned of the need to anchor the goals and to post
warning labels on them. Bolsen testified that because his term expired two weeks
later, he had time to relay the information only to a few persons. However, no
action was taken to secure the goals.
       {¶ 25} Appellants argue that Bolsen’s failure to take more affirmative steps
to ensure that the Club and the city implemented the safety recommendations
amounts to willful and wanton misconduct. Like the court of appeals, we reject
this argument.
       {¶ 26} There is no evidence that the former president intended that Bryan
should be injured. Nor did the former president utterly fail to exercise any care
whatsoever. Even accepting as true the appellants’ claim that club officials knew
about the safety problems but failed to act, this action does not amount to willful
and wanton misconduct. As noted by the appellate court, “Park officials testified
that the City never had anchored the goals in the past, and, apparently, of the
thousands of young boys and girls playing soccer in the youth league throughout
the years, no other child had been injured in this manner.” Thus, reasonable minds
could not conclude that the risk posed by the unanchored goal was so great as to
require immediate remedial action.
       {¶ 27} Moreover, the evidence established that the city, not the Club, was
responsible for the upkeep of the soccer fields and the purchase, storage,
maintenance, and placement of the soccer goals.




                                        12
                               January Term, 1998




       {¶ 28} We find that appellants failed to produce sufficient evidence to
present a jury question on the claim of willful and wanton misconduct.
       {¶ 29} Accordingly, we affirm the court of appeals’ judgment, albeit on
somewhat different grounds. We uphold its decision that the release is valid as to
the parents’ claims. However, we hold that the release is also valid as to the minor
child’s claim.
                                                                Judgment affirmed.
       MOYER, C.J., RESNICK, COOK and LUNDBERG STRATTON, JJ., concur.
       DOUGLAS and PFEIFER, JJ., concur in judgment only.
                              __________________
       COOK, J., concurring.
       {¶ 30} I join in the well-reasoned majority opinion. I write separately only
to point out that today’s decision is firmly grounded in the public policy of the
General Assembly, as evinced by the legislative enactments cited by the majority.
                              __________________




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