May 13, 2009

Florida Parental Pre-Injury Releases: Are They Worth the Paper They’re Written On?

Holland & Knight Alert
Allison McCarthy

On December 11, 2008, the Florida Supreme Court issued a ruling invalidating pre-injury releases signed by parents on behalf of their minor children when children are injured participating in commercial activities. The underlying facts and outcome of the decision caused concern for many Florida businesses that allow children to engage in an activity conditioned upon a parent signing a release or waiver, particularly businesses in the recreation and sports industries. This case, Kirton v. Fields, has very important ramifications for hotels and resorts that have programs for children.

The Facts: Kirton v. Fields

A father took his 14-year-old son to a motor sports park to ride his all terrain vehicle (ATV). To gain entry to the facility and be allowed to participate in riding the ATV, the father, as his son’s guardian, signed a release and waiver of liability, assumption of risk and indemnity agreement. While attempting a particular jump, the son lost control of his ATV, causing him to be ejected. He hit the ground with the ATV landing on top of him. He got up, walked a short distance, then collapsed and died. The child’s estate filed suit against the motor sports park. The trial court granted summary judgment in favor of the business, whose position was supported by the child’s father, who accepted responsibility for signing the waiver. The appellate court and the Florida Supreme Court disagreed.

The Florida Supreme Court acknowledged that parents undoubtedly have a fundamental right to make decisions concerning the care, custody, upbringing and control of their children, but that this right was not absolute. The Court found that the question of whether a parent should be allowed to waive a minor child’s future tort claims implicated wider public policy concerns, and found that when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. The Court reasoned that enforcing pre-injury releases would remove the incentive for business owners, which the Court found to be in a position as the activity provider, to take precautions to ensure the child’s safety and insure its business risk, to take reasonable precautions to protect the safety of minor children. Based on these public policy concerns, the Court held that the pre-injury release executed in this case was unenforceable.

Will the Legislature Override the Decision?

As a result of the Kirton v. Fields decision, there was a movement in Florida among businesses that rely on parental pre-injury releases to lobby for legislation to be adopted to restore parental authority with respect to such pre-injury releases. Walt Disney World and SeaWorld Orlando both backed legislation that would ensure that parents have the authority to sign pre-injury waivers on behalf of their minor children. There was recently a bill being considered in the Florida House of Representatives, HB 363, and a companion bill being considered in the Florida Senate, SB 886, that each generally authorize natural guardians to waive and release, in advance, any claim or cause of action that would accrue to any of their minor children to the same extent that any adult may do so on his or her own behalf. However, both of these bills died amid heavy amendments that greatly weakened their effect, including limiting releases to certain inherently risky activities. This may be an area, however, that the state legislature revisits in the future.

Liability Varies in State Jurisdictions

Many states allow pre-injury releases for the purpose of relinquishing the right to pursue legal action against a service provider in the event that negligence of the provider results in an injury to a participant. However, a parent having the authority to contractually waive their minor children’s rights (for children who are not legally competent to enter into a binding contract themselves) to pursue such legal actions is not as widely allowed by the states. As is pointed out in the Kirton v. Fields opinion, some states also make a distinction between commercial and non-commercial activities in recognizing the validity of such releases or waivers.

Hotel and resort operators must understand the limitations in their applicable jurisdictions in using parental releases as liability protection in providing children activities at their properties, including children’s camps, day care and recreational activities. Pre-injury releases do not insulate providers from liability in cases of gross negligence and other extreme forms of negligence even in jurisdictions where they are otherwise found to be enforceable. It is essential that hotel and resort operators ensure that: the staff involved with activities for their guests’ children are well trained with regard to the facility’s proper operation and their supervisory responsibilities; the premises are routinely inspected for unsafe conditions; and adequate insurance coverage is in place.

Protecting the hotel or resort from a major claim resulting from injury to a minor guest or visitor is definitely not child’s play.

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