On December 11, 2008, the Florida Supreme Court held that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a commercial activity.
In Kirton v. Fields, SC07-1379 (Fla. Dec. 11, 2008), a parent took his 14 year old son to ride his ATV at a motor sports park. In order to gain entry to the facility and ride the ATV there, the father signed “release and waiver of liability, assumption of risk, and indemnity agreement.” Tragically, the child was killed immediately after a jump when his ATV landed on top of him.
In Florida, pre-injury releases (also known as exculpatory agreements) are looked upon with disfavor, but allowed. In an unusual twist, the boy’s father signed an affidavit on behalf of the defendants admitting: he willfully and with full understanding executed the release; it was his intention to waive the right to sue for the death of his son; he understood that by signing the general release, he was forever discharging the defendants for any circumstances which would cause the death of his son, even if caused by the negligence of the defendants.
Despite the release and the father’s stated intent, the supreme court found that public policy concerns do not allow parents to execute pre-injury releases on behalf of minor children. The court acknowledged that 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, but that right does not lead to a conclusion that the parent has a fundamental right to execute a pre-injury release of a tortfeasor on behalf of a minor child. Referencing the financial burden placed on the family members, community, and people of the State when a minor child is injured, the court noted: “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.”
In making its decision, the court referenced its decision in Global Travel Marketing v. Shea, 908 So. 2d 392, 399 (Fla. 2005), whereby it had earlier determined a parent could enter into a pre-injury agreement to arbitrate. The court drew a sharp distinction between waiving a minor’s actual legal claim/right versus waiving the forum in which such a claim is presented.
The supreme court also distinguished commercial activities from community-run and school-sponsored type activities, because they involve different policy considerations. In community and volunteer-run activities, the court stated “providers cannot afford to carry liability insurance because ‘volunteers offer their services without receiving any financial return.’ If pre-injury releases were invalidated, these volunteers 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.”
This important case resolves a conflict between the districts regarding the propriety of a parent releasing future, unknown claims of a minor child. It will be interesting to see the fallout of this case as these exculpatory agreements are commonly used in children’s extra-curricular activities (from activities such as karate, soccer, or gymnastics, to popular birthday party events for minor children).