Parents commonly face this dilemma: your child wants to participate in some activity, which requires an admission fee and the parent to sign a release of liability. Should you do it? Are such releases valid in Florida?
A recent decision by the Florida Supreme Court has appeared to settle the issue. The case involved a custodial parent, whose 14-year-old son wanted to ride an ATV at a commercial motorsports park. The father signed, on his son’s behalf, a release and waiver of liability, assumption of risk and indemnity agreement, and his son was allowed to ride the ATV. While attempting a jump, the boy lost control of the ATV and he was ejected. He died. The boy’s mother was not aware her son was participating in the activity.
After the boy’s death, an estate was opened and a personal representative was appointed who brought suit for wrongful death against the sports facility. In defending the lawsuit, the sports facility raised the release documents signed by the boy’s father as a defense against the claim. The trial court ruled the release was valid and binding and barred the lawsuit by the child’s estate.
Resolving the issue presented a conflict between a parent’s right to raise their children and the state’s right to protect children. The Florida Supreme Court recognized the authority of parents to make decisions for their children, but noted that authority is not unlimited. Specifically, it noted the statutory authority of a parent, acting as the natural guardian of a minor child, to settle a child’s injury claim up to $15,000 in Florida.
The court found public policy cannot allow parents to execute pre-injury releases on behalf of minor children. It stated,
While a parent’s decision to allow a minor child to participate in a particular activity is part of the parent’s fundamental right to raise a child, this does not equate with a conclusion that a parent has a fundamental right to execute a pre-injury release to a tortfeasor on behalf of a minor child. It cannot be presumed that a parent who has decided to voluntarily risk a minor child’s physical well-being is acting on the child’s best interest.
It found a parent, who decides to execute a pre-injury release on behalf of a minor child is not protecting the interests of the child, but the interest of the activity provider. Business owners need to focus on providing a safe environment, not protecting their own interest without regard to safety. Consequently, the court reversed the trial court and reinstated a lawsuit brought by the child’s estate. The Court stated, “we hold that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity.”
Note this case involved commercial activities, not purely voluntary activities such as at school or church. (The opinion of the Florida Supreme Court in Kirton vs. Jordan Fields may be found that 33 Fla. L. Weekly S939, Dec 12, 2008.)