Recreation Law: Underage Minor Suffers Injury after Misrepresenting Age to Gain Access - Who Is Responsible?

Emerick v. Fox Raceway, (2004 Pa. Dist. & Cnty. Dec. LEXIS 228)

After some searching, we have found a case dealing with a claimant who was injured after misrepresenting his way into a recreation activity.

As the internet and other circumstances facilitate the remote (beyond the direct supervision of the service provider) execution of admission and other documents, complaints of forgeries and lies regarding parental consent and age, for example, have increased. We have very limited guidance as to  how the courts might weigh the wrong committed by the applicant against the conduct of the service provider, in assessing responsibility for an injury arising from the ensuing activity.

In Emerick v. Fox Raceway, (2004 Pa. Dist. & Cnty. Dec. LEXIS 228), Plaintiffs, mother and son, sued for injuries suffered by the son, Frank, in a motocross accident.  Frank was 16 years and nine months old at the time of the accident. He was admitted to the racing event after completing the paper work for an adult participant (a release of claims and a medical form), thereby avoiding the necessity of providing a parental consent, required by the Raceway for minor participants.

According to deposition testimony presented to the trial court, Frank had planned to enter the race although he did not have his parents's permission and knew they would not approve.

The Raceway had policies prohibiting a minor's participation without a parent's consent, and procedures designed to prevent a violation of that policy.  Testimony received by the Court indicated some inconsistencies in the application of those policies and procedures, which included judging an applicant's age based only on appearance, or asking for a photo identification.  A member of the Raceway staff testified by deposition that "as a general rule" a parent or legal guardian was required to sign for a minor in the presence of Raceway staff.

The operator of the Raceway testified that the track, although not required to do so at this event (because it was not sanctioned by the American Motocross Association - "AMA") followed the rules of the AMA.  Those rules required the written consent (described in the quoted rule as a signature on a liability release and entry forms) of a minor's parents or legal guardians "...present at the meet".

Frank had been advised by a friend that the Raceway was lax in its screening for minors and that he probably would be allowed to race in spite of being under-age.  In fact, Frank was admitted to the race and was not asked for identification. Shortly after the beginning of the race, Frank collided with two riders ahead of him and fell from his bike, resulting in permanent quadriplegia.

Mother and son sued the Raceway. The mother claimed loss of consortium—that is, the loss of her enjoyment of the companionship of her son - and economic damages, including the loss of the child's earnings; and the cost of his medical care and maintenance until adulthood.

Frank sued for negligence—in this case, the failure of the Raceway to properly manage the track by not verifying ages and obtaining parental consent to a minor's (his) participation. Apparently, according to the Court's opinion, Frank, at this point in the proceedings, had not complained of the track's management of the actual race.

Raceway filed a motion for summary judgment before trial, asking the Court to dismiss the claims of Frank and his mother.  Raceway argued that it owed no duty to Frank (and thus could not be negligent), and that Frank assumed the risk of injury, barring any recovery. Raceway argued further that Pennsylvania law did not allow Frank's mother to be compensated for loss of consortium. 

The Court agreed with the Raceway on the consortium issue, finding as a matter of Pennsylvania law that such a claim is reserved for spouses only.  However, the Court allowed that portion of Frank's mother's claim for loss of economic support and medical costs for Frank (during his minority), to continue.

The Court's handling of the negligence issue was more complicated, and surprising.

Frank testified that he was an experienced motocross driver, understood the risks of the sport, and knew that his parents had forbidden him to race because it was dangerous.  He admitted that he indeed had misrepresented his age when he registered for the race.

Raceway conceded that it had a duty to exercise reasonable care in the management of its facility, but argued that the cause of Frank's injuries was not mismanagement (failure to verify his age), but, rather, Frank's deliberate misrepresentation of his age and the inherent risks of motocross racing.

An expert for Frank and his mother opined as to the adequacy of the screening procedures at the track, declaring that Raceway officials should have anticipated that minors would lie in order to participate and that, therefore, strict measures should have been in place to determine age—ideally a photo identification.  The expert further opined that it was "not reasonable" to rely on a minor's truthfulness.

Addressing the Raceway's "no duty" argument, the Court agreed that the risk of Frank's being injured was inherent in the activities at the Raceway, and that Raceway had no duty to protect Frank from those inherent risks. (Citing Pennsylvania case authority).  The Court noted, however, that these "no-duty" rules apply only to inherent risks which are "common, frequent and expected" and "... in no way affect the duty of theatres, amusement parks and sports facilities to protect patrons from foreseeably dangerous conditions not inherent in the amusement activity."  (citing Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978)).  The Court found (citing Jones) that—for amusement facility owners—this includes a duty to "...use reasonable care in the construction, maintenance and management of [the facility]."

The Court further explained that owners of an amusement facility—as premises owners—owe their patrons ("invitees") a duty of care to protect them from foreseeable harm.  This duty of care, the Court stated, may extend even to obvious dangers, if the premises owner "...should anticipate the harm despite its obviousness."

The Court found that the evidence pointed to the fact that the cause of Frank's injuries was not the inherent (and obvious) risk of getting injured while racing, but Raceway's failure to verify Frank's age.  This, the Court found was NOT the sort of risk which was inherent in Raceway's activities—it was, rather, a foreseeable management deficiency, and thus not subject to the inherent risk "no duty" rule.

The Court also disagreed with Raceway's position that the cause of Frank's injury was his lying to gain admission.  The Court stressed that Frank's conduct was foreseeable and should have been guarded against, to prevent his participating in this dangerous activity without parental consent and guidance. Quoting a prior opinion of the Pennsylvania Supreme Court, the Court declared: "Children must be expected to act upon immature judgment, childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly." (Citing Styer v. Reading, 61 A 2d 382 (Pa. 1948)).  (Note that the quoted opinion regarding the vulnerabilities of children was issued some 56 years earlier!)

The Court further found that amusement facilities involving more dangerous activities (like motocross) are subject to a higher duty of care, particularly, in this case, with regard to their duty to manage the facility to monitor a minor child's [foreseeable] efforts to gain unauthorized entry (considering their "particular fascination" with motocross).

At the heart of the Emerick Court's holding, then, is the particular vulnerabilities of children, including a propensity to lie to gain access to an attractive amusement. Cases cited by Raceway were not convincing, the Court found, for they presumed individuals were making a rational choice about whether or not to participate.  Frank—a minor—was not capable of making that choice, the Court found, and Raceway should have known that to be so.  The Court referred to Raceway's policy of requiring a parent's or guardian's consent as proof that Raceway recognized that children must be protected from themselves.

The Court did not hesitate to find that the release Frank signed was invalid, since he was a minor.  It also found that since a minor is legally incompetent to release a claim (thereby expressly assuming the risks), it "makes no sense" that a minor could impliedly assume risks so as to eliminate his claim.  However, the Court found that there was at least a fact issue as to Frank's responsibility for the accident, and that the jury should decide if Frank's actions contributed to his injuries under Pennsylvania's comparative fault laws.  The Court concluded its opinion by denying Raceway's motion for summary judgment regarding duty and inherent risks, stating: "We find it much more appropriate to submit the issue of the parties's comparative negligence to the jury than to bar recovery against the defendants as a matter of law."  

Unfortunately, we are not told what "negligence" the jury would be asked to consider.  However,  inasmuch as Plaintiff's claims related exclusively to Frank's being allowed to participate, it appears the jury would weigh Frank's deceit in gaining admission against Raceway's allegedly lax policies and procedures in managing admissions.  

The case was returned to the lower court for a determination of comparative fault and damages. 

Discussion: 

This 2004 trial court opinion may not receive serious attention from other courts of the country seeking precedent in this area of the law, but it raises some interesting issues for recreation and adventure service providers.

  • If a participant misrepresents his minority status or forges a parent's signature in order to participate, and is subsequently injured, how should responsibility be allocated between the service provider and the minor? Clearly the injury would not have occurred but for the minor being allowed to participate.  What if the parent of a minor participant, in an Emerick scenario, admits, after the fact, that he or she would have approved? The Emerick Court seems to be saying that pre-activity parental consent (and reasonable polices to obtain that consent) is the key.
  • While the Court does not discuss the issues on the track itself, it appears to concede that the accident, and Frank's tragic injuries, were inherent risks of motocross racing.  The Court found that Frank's minority (and immaturity) enlarged those inherent risks (the danger that he might be injured in the race)—and so we come back around to the circumstance of his being allowed to be on that track and the party responsible for that circumstance.  Put another way, the Court found the evidence could support a finding that Frank's injuries were not caused by the inherent risks of motocross racing, but by Raceway's negligence in failing to adequately monitor a minor's access to its activities. The jury's ultimate verdict, and any "comparative negligence" assigned to Frank, are unknown. 
  • Does the service provider have a duty to "take reasonable measures" to safeguard against a minor participating, without parental consent, as the Emerick Court indicates? In fact, Emerick goes as far as to say that "Raceway had a duty to create and follow reasonable procedures to ensure that minors did not misrepresent their age to race without parental consent."  What reasonable precautions can or should be imposed on the service provider, to determine the eligibility of the minor to participate?  Photo identification?  The actual presence of the parent or guardian?  Verification by e-mail or telephone?  Other? Programs would be well advised, with or without this Emerick opinion, to develop strategies for screening minors's applications, for the possibilities of outright misrepresentations and forgeries. A climbing gym, however, confronted with fifty screaming teenagers, hasn't the luxury of phone calls, faxes and e-mails to verify ages.  Programs with a longer lapse of time between applications and the event can build in some verification techniques.
  • Does this Court (citing case authority more than 50 years old) correctly characterize the vulnerabilities and propensities of a mid-teen?  Would the Emerick Court rule the same way today?  Ironically, minors today may be less informed than Frank Emerick, and their parents more protective!  However, opinions we see today involving children are not as protective as the Emerick Court was. (See, for example, our May, 2010 case summary, and note of the Ohio Supreme Court ruling holding 4 year olds to an inherent risk "no duty" rule!).  In fact, children over 14 are usually held to the same standard as adults, concerning an understanding of risks of most activities.  It appears that the particularly risky nature of motocross racing played a part in the Emerick opinion.  Indeed, the Court found that those offering a more "dangerous" sport like motocross owed a higher duty of care to create and follow screening procedures for minors.  In terms of the generally understood or common risks, how does motocross racing compare to rock wall climbing? To challenge course activities? To crossing a waist deep and rapidly moving river without supervision?
  • What would be the result if an adult forged a signature (pretending to be a parent of a minor, for example). What strategies might be used to prevent this, or to alert a would-be adult forger to the consequences of signing? The document might announce a penalty that the forger must protect the organization from claims arising from the event, and the forger—being an adult and having presumptively read the document—might be bound by that undertaking.  Is it fair to hold a non-signing parent, implicated in the wrongdoing of the child, to the same burden?
  • What if Frank's parents had given him permission to participate and signed the form—and Frank had suffered the same accident/injuries?  In that event, would —or should—the Court have found Frank subject to the inherent risk "no duty" rule?  Would the parent "release" for the minor be upheld?  We don't know, because the Court didn't comment. 
  • Note that Raceway representatives's testimony arguably pointed to the fact that Raceway had policies in place to monitor admission of minors by checking for I.D.s and/or having parent/s present.  The case provides a good example of what can happen (in litigation) if an organization develops policies, intended to be adhered to by its staff, but staff fail to consistently follow those policies.   If an organization is going to create policies, staff should understand the importance of those policies being followed (and the ramifications—in subsequent litigation—if they aren't!)

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