Zivich v. Mentor Soccer Club, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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ZIVICH ET AL., APPELLANTS, v. MENTOR SOCCER CLUB, INC., APPELLEE, ET AL.
[Cite as Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367.]
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.

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
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 * * *."

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.

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.

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
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

2

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.

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. 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.

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

3

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.

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."

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
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.

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

4

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

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. 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.

5

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
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.

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

6

through the uncompensated services of volunteers and their sponsoring
organizations.

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.

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 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

7

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.

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.

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.

"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

8

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.

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
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

9

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.

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.

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.

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
10

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.
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.

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.

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-
11

389, quoting Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 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.

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.

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.

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.
12

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.

We find that appellants failed to produce sufficient evidence to present a
jury question on the claim of willful and wanton misconduct.

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.
FOOTNOTES:
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.
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.
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
13

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.
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.
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.
__________________

COOK, J., concurring. 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.
14