Parent’s waiver bars claim against government

A young woman who was 15 years old when she was injured during a JROTC program at Camp Lejeune will not be able to sue the U.S. government, a North Carolina federal judge has ruled. The federal court, weighing in on an issue that has never been addressed by North Carolina’s state courts, held that a liability waiver signed by the girl’s mother prevented her from bringing a suit in her own name.

Morgan Kelly was injured when she fell from the “Slide for Life,” a 40-foot climbing tower on the Marine base’s “Confidence Course.” She claims that the instructors knew that the slide posed a substantial risk of death or serious bodily injury if it were not successfully negotiated, but still failed to assess Kelly’s physical capabilities before she climbed the slide, or provide any safety harnesses or other protection systems that would prevent her from falling. Kelly’s attorneys say that she suffered extensive and long-lasting spinal injuries as a result of the fall.

The U.S. government moved to dismiss Kelly’s suit, pointing to a liability waiver signed by Kelly and her mother. Because Kelly was 15 at the time she signed the document, her waiver was unenforceable under North Carolina law, but U.S. District Court Judge Louise Flanagan said it did not appear that North Carolina courts have ever decided whether a liability waiver signed by a parent on behalf of a minor child is enforceable.

Kelly argued that the waiver she signed shouldn’t be enforced because it violated public policy. Waivers from liability for negligence are generally enforceable in North Carolina, but its courts prohibit contracts to prevent liability for negligence in performing a public service, or where a public interest is involved. Kelly cited a recent federal court decision where a liability waiver did not protect a Marine recruiter who ran a red light on the way to the base, injuring passengers. She argued that protecting the safety of schoolchildren was a compelling public interest on par with public interest in traffic safety.

Flanagan agreed that protecting schoolchildren was a matter of public interest, but said the case also involved a contrary public interest in offering JROTC programs to children without the risks and high costs of litigation. She also noted that numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors.

“Courts have also found that such releases serve the public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity,” Flanagan wrote in granting the government’s motion to dismiss. “Likewise, North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children.”

Steven Stancliff and James Chapman of Crenshaw, Ware and Martin in Norfolk, Virginia represented Kelly.

Stancliff said that the government fully appreciated the fact that a fall from the apparatus would likely result in serious injury or death. In fact, part of the goal of the exercise for Marines being trained for active combat is to learn to overcome the fear of a situation where there is a very real possibility of serious bodily harm.

“But when they make that equipment available to children, it’s simply a matter of common sense that the risk of actual harm should not be a factor in the experience,” Stancliff said. “If this were any other facility providing a climbing activity like this, it would be an absolute requirement that they have some kind of protective equipment.”

Stancliff also argued that even if the liability waiver were otherwise valid, Kelly’s parents were never properly apprised of the actual risks their daughter would face.

Flanagan had previously dismissed Kelly’s claims against the government for gross negligence, finding that the allegations raised in the complaint were insufficient to satisfy the higher standard necessary for gross negligence. Kelly’s attorneys have filed a motion for permission to amend that complaint.

Kelly’s lawsuit seeks damages in excess of $10 million.

The 29-page decision is Kelly v. United States (Lawyers Weekly No. 14-02-0924). A full opinion digest is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan