Florida High Court Nixes Business Liability Waivers Affecting Children

December 19, 2008

The Florida Supreme Court has ruled that a parent can’t execute an injury liability waiver for a minor child when the liability release involves participation in a commercial, as opposed to community or nonprofit, activity.

Such releases are more in the interest of the commercial interests requiring them than they are in the best interests of the public or the child who may be injured, the court found.

It ruled that a commercial release was unenforceable against a minor’s estate in the case, Scott Corey Kirton vs. Jordan Fields.

Bobby Jones was the primary residential parent for his 14-year old son, Christopher. In 2003, the father took Christopher to Thunder Cross 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, Bobby Jones, as Christopher’s natural guardian, signed a release and waiver of liability, assumption of risk and indemnity agreement.

While attempting a particular jump, Christopher lost control of his ATV, causing himself to be ejected. Tragically, he hit the ground with the ATV landing on top of him. He got up, walked a short distance, then collapsed and died.

Subsequently, Jordan Fields, representing the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. as owners and operators of Thunder Cross Motor Sports.

Jones admitted that he fully understood that he was waiving the right to sue for the death of Christopher and forever discharging the Kirtons for any and all loss or damage in signing the release.

The Kirtons argued that the claims raised by Fields were barred by the release and waiver executed by Jones on behalf of his son.

The trial court granted the Kirtons’ motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material fact because the release executed by Jones on behalf of his minor child, Christopher, barred the claim.

On appeal, the Fourth District reversed the trial court, finding that that there was no statutory scheme governing the issue of pre-injury releases signed by parents on behalf of minor children and that the courts do not have the authority to “judicially legislate that which necessarily must originate, if it is to be law, with the legislature.”

The Kirtons asserted that a parent has a fundamental right to make decisions relating to the care of a minor child, and that right includes executing a pre-injury release on behalf of the minor child.

Fields contended that pre-injury releases are invalid because neither the common law nor the Legislature has given parents the authority to waive these substantive rights of a minor child.

Although there are jurisdictions where pre-injury releases executed by parents on behalf of minor children have been found enforceable, the state’s high court noted that the decisions where they have been upheld involved a minor’s participation in school-run or community-sponsored activities.

The state Supreme Court decided that the absence of a statute governing parental pre-injury releases demonstrates that the Legislature has not precluded the enforcement of such releases on behalf of a minor child. However, it found that wider public policy concerns cannot allow parents to execute pre-injury releases on behalf of minor children.

The court said there is “injustice” when a parent agrees to waive the tort claims of a minor child and deprive the child of the right to legal relief when the child is injured as a result of another party’s negligence. The result benefits the commercial enterprise more than the child, his family or the state:

“When a parent executes such a release and a child is injured, the provider of the activity escapes liability while the parent is left to deal with the financial burden of an injured child. If the parent cannot afford to bear that burden, the parties who suffer are the child, other family members, and the people of the State who will be called on to bear that financial burden. Therefore, 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. Moreover, a parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor. For this reason, the state must assert its role under parens patriae to protect the interests of the minor children.”

The court said that business owners owe their patrons a duty of reasonable care and must maintain a safe environment for the activity they provide. If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed, according to the court. While a commercial business can take precautions to ensure its child patrons’ safety and buy insurance to protect itself, a minor child cannot insure himself or herself against the risks involved in participating in that activity, the court said.

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