Wrongful Death and Pre-Injury Release or Waiver in Florida
This wrongful death article is about whether or not a pre-injury release executed by a parent on behalf of a minor child is enforceable against the minor or the minor’s estate in a tort action that arises from injuries resulting from participation in a commercial activity? The Florida Supreme Court answered this question in the negative holding that the pre-injury release signed by a parent on behalf of a minor child is unenforceable if the child is injured while participating in a commercial activity. (See Kirton v. Fields, 997 So.2d 349 (FLA 2008)).
In Kirton, the case was sent up to the Florida Supreme Court to certify a question of great public importance, “Whether a parent may bind a minor’s estate by the pre-injury execution of a release?” Id. The 4th District Court of Appeals and the 5th District were in somewhat of a disagreement and that is why the case was certified to the Florida Supreme Court. In the Kirton case, the father of a fourteen year old boy signed a waiver to allow his son to ride in an ATV facility. The child went across a jump and flew off the ATV and crashed. After a short while he died. Subsequently the child’s estate filed a wrongful death law suit. The defense claimed the release and waiver executed by the father relieved them of liability. Id. The trial court granted a dismissal. But the estate appealed and the 4th District Court of Appeals reversed holding that the “issue was not about a parent’s decision on what activities are appropriate for his or her minor child, which is properly left to the parent. Instead, the issue concerned the “decision to absolve the provider of an activity from liability for any form of negligence… [which] goes beyond the scope of determining which activity a person feels is appropriate for their child.” Id. “This is because the “effect of the parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor. As a result, the district court found that these rights could not be waived by the parents absent a basis in common law or statute.” Id.
The Florida Supreme Court explained that parental rights are not absolute. Id. There are two situations when the state’s authority usurps that of a parent, in juvenile delinquency and dependency matters. Id. The Court went on to explain that the 3rd District had a case in 2004 where a child was hurt during a Coral Gables Fire Rescue Explorer Program. Id. In that case the 3rd District held that the release barred the mother’s claim on behalf of the minor child and made a distinction between community and school-supported activities and commercial activities. Id. The 3rd District also in 2007 held that a pre-injury release on behalf of a child who participated on her high school cheerleading squad was valid and enforceable. Id. The 3rd District held that “parents have the authority to make the decision whether to waive a child’s litigation rights in exchange for participation in an activity the parent feels is beneficial for the child.” Id.
The 5th District held that a pre-injury release was unenforceable against public policy when it involved a minor child who was injured while wakeboarding at a camp. Id. In that case the court said that its decision was “limited to commercial enterprises because “[t]hey can insure against the risk of loss and include these costs in the price of participation.”” Id. Also, a federal district court in Florida found the pre-injury releases signed by parents on behalf of their minor children to be invalid. (cites omitted). Id. In one case a child was injured while on a jet ski that was owned by a company out of the Bahamas. Id. The federal court upheld the proposition that in cases involving school sponsored or community run activities the courts have upheld pre-injury release, and in cases involving commercial activities the courts have found the releases unenforceable. Id.
The Florida Supreme Court went on to look at other states for support and found that other jurisdictions that have “upheld pre-injury releases have done so because community run and school sponsored type activities involve different policy consideration than those associated with commercial activities. As the Ohio Supreme Court explain in Ziyich, in community and volunteer run activities, the providers cannot afford to carry liability insurance because “volunteer offer their services without receiving any financial return.” (cites omitted). Id. “If pre-injury releases were invalidated, these volunteer would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort.” Id.
In the case at hand, the Court held that “It cannot be presumed that a parent who has decided to voluntarily risk a minor child’s physical well-being is acting in the child’s best interest. Furthermore, we find that 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. 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 interest of the activity provider.” Id.
“Business owners owe their patrons a duty of reasonable care and to maintain a safe environment for the activity they provide. (cites omitted). 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. Id. Moreover, as a provider of the activity, a commercial business can take precautions to ensure the child’s safety and insure itself when a minor child is injured while participating in the activity. On the other hand, a minor child cannot insure himself or herself against the risks involved in participating in that activity.” Id.
In New Jersey, the New Jersey Supreme Court stated in a case they had that “[T]he operator of a commercial recreation enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility’s proper operation, and regulate the types of activities permitted to occur. Such an operation also can obtain insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks. Moreover, the expectation that a commercial facility will be reasonably safe to do that which is within the scope of the invitation is especially important where the facility’s patrons are minor children. If we were to permit waivers of liability, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety.” Id.
To this wrongful death attorney writer, this logic from New Jersey’s Supreme Court was right on. The strong public policy argument to make a difference between a school sponsored activity and that of a commercial one makes good sense. The courts do not want a parent to be able to waive a child’s rights and let a commercial provider a way of escaping liability for a possible negligent act that the provider may have done.
If you have been involved in an accident where a minor child of yours was injured and you signed a pre-injury waiver or release, please call and speak to accident personal injury attorneys Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!
Wrongful Death and Pre-Injury Release or Waiver in Florida
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should you need clarification on any legal issue.
This wrongful death article is about whether or not a pre-injury release executed by a parent on behalf of a minor child is enforceable against the minor or the minor’s estate in a tort action that arises from injuries resulting from participation in a commercial activity? The Florida Supreme Court answered this question in the negative holding that the pre-injury release signed by a parent on behalf of a minor child is unenforceable if the child is injured while participating in a commercial activity. (See Kirton v. Fields, 997 So.2d 349 (FLA 2008)).
In Kirton, the case was sent up to the Florida Supreme Court to certify a question of great public importance, “Whether a parent may bind a minor’s estate by the pre-injury execution of a release?” Id. The 4th District Court of Appeals and the 5th District were in somewhat of a disagreement and that is why the case was certified to the Florida Supreme Court. In the Kirton case, the father of a fourteen year old boy signed a waiver to allow his son to ride in an ATV facility. The child went across a jump and flew off the ATV and crashed. After a short while he died. Subsequently the child’s estate filed a wrongful death law suit. The defense claimed the release and waiver executed by the father relieved them of liability. Id. The trial court granted a dismissal. But the estate appealed and the 4th District Court of Appeals reversed holding that the “issue was not about a parent’s decision on what activities are appropriate for his or her minor child, which is properly left to the parent. Instead, the issue concerned the “decision to absolve the provider of an activity from liability for any form of negligence… [which] goes beyond the scope of determining which activity a person feels is appropriate for their child.” Id. “This is because the “effect of the parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor. As a result, the district court found that these rights could not be waived by the parents absent a basis in common law or statute.” Id.
The Florida Supreme Court explained that parental rights are not absolute. Id. There are two situations when the state’s authority usurps that of a parent, in juvenile delinquency and dependency matters. Id. The Court went on to explain that the 3rd District had a case in 2004 where a child was hurt during a Coral Gables Fire Rescue Explorer Program. Id. In that case the 3rd District held that the release barred the mother’s claim on behalf of the minor child and made a distinction between community and school-supported activities and commercial activities. Id. The 3rd District also in 2007 held that a pre-injury release on behalf of a child who participated on her high school cheerleading squad was valid and enforceable. Id. The 3rd District held that “parents have the authority to make the decision whether to waive a child’s litigation rights in exchange for participation in an activity the parent feels is beneficial for the child.” Id.
The 5th District held that a pre-injury release was unenforceable against public policy when it involved a minor child who was injured while wakeboarding at a camp. Id. In that case the court said that its decision was “limited to commercial enterprises because “[t]hey can insure against the risk of loss and include these costs in the price of participation.”” Id. Also, a federal district court in Florida found the pre-injury releases signed by parents on behalf of their minor children to be invalid. (cites omitted). Id. In one case a child was injured while on a jet ski that was owned by a company out of the Bahamas. Id. The federal court upheld the proposition that in cases involving school sponsored or community run activities the courts have upheld pre-injury release, and in cases involving commercial activities the courts have found the releases unenforceable. Id.
The Florida Supreme Court went on to look at other states for support and found that other jurisdictions that have “upheld pre-injury releases have done so because community run and school sponsored type activities involve different policy consideration than those associated with commercial activities. As the Ohio Supreme Court explain in Ziyich, in community and volunteer run activities, the providers cannot afford to carry liability insurance because “volunteer offer their services without receiving any financial return.” (cites omitted). Id. “If pre-injury releases were invalidated, these volunteer would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort.” Id.
In the case at hand, the Court held that “It cannot be presumed that a parent who has decided to voluntarily risk a minor child’s physical well-being is acting in the child’s best interest. Furthermore, we find that 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. 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 interest of the activity provider.” Id.
“Business owners owe their patrons a duty of reasonable care and to maintain a safe environment for the activity they provide. (cites omitted). 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. Id. Moreover, as a provider of the activity, a commercial business can take precautions to ensure the child’s safety and insure itself when a minor child is injured while participating in the activity. On the other hand, a minor child cannot insure himself or herself against the risks involved in participating in that activity.” Id.
In New Jersey, the New Jersey Supreme Court stated in a case they had that “[T]he operator of a commercial recreation enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility’s proper operation, and regulate the types of activities permitted to occur. Such an operation also can obtain insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks. Moreover, the expectation that a commercial facility will be reasonably safe to do that which is within the scope of the invitation is especially important where the facility’s patrons are minor children. If we were to permit waivers of liability, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety.” Id.
To this wrongful death attorney writer, this logic from New Jersey’s Supreme Court was right on. The strong public policy argument to make a difference between a school sponsored activity and that of a commercial one makes good sense. The courts do not want a parent to be able to waive a child’s rights and let a commercial provider a way of escaping liability for a possible negligent act that the provider may have done.
If you have been involved in an accident where a minor child of yours was injured and you signed a pre-injury waiver or release, please call and speak to accident personal injury attorneys Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!
