Arbitration & Mediation

Releases Signed By Parents For Children Not Valid For Commercial Activities

By Christopher B. Hopkins, Esq.

The Florida Supreme Court took up the question of the enforceability of (fairly common) "pre-injury" liability waivers/general releases which are signed by parents so their children can participate in commercial activities. Finding this an issue of "great public importance," the Court held that these releases are NOT valid. If, however, the waiver is for the child to participate in non-commercial activities such as school or community events, such a waiver could be valid.

As the dissent points out, it is odd for the Florida Supreme Court to enunciate a public policy (of great public importance) despite no such prior reference in Florida general or statutory law. Moreover, quickly Florida lawyers will question (a) whether the parents can be called upon to indemnify the activity operator or (b) whether a case involves a commercial or school/community activity.

The case of Scott Corey Kirton et al. v. Jordan Fields et al.; Dean Dyess v. Jordan Fields; and H. Spencer Kirton v. Fields were consolidated appeals arising from an August 2007 Fourth District Court of Appeal decision.

Our prior post gives the backdrop of case law which lead to this Florida Supreme Court ruling, which should not have come as a shock in light of the hints dropped in the 2005 Global Travel v. Shea opinion.

The 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 commercial activity." In a quick footnote, the Court then qualified that this decision would only be dicta if (when!) the questions arise about the enforceability of parent-signed exculpatory agreements for children to participate in non-commercial activity.

That creaking noise you hear is the door being swung wide open for appeals arising from the enforcement of liability waivers in non-commercial cases as well as in instances where it is unclear whether an activity is commercial or non-commercial.

The Court admitted there is no statute on point. It did, however, find that this situation invoked the State's parens patriae public policy basis to preclude the enforcement of such waivers. Signing a pre-injury waiver was deemed not to be so much a part of a fundamental right of raising children but more an "injustice" which "deprives the child of the right to legal relief" and could lead the child, family, and the State to "suffer." Signing the waiver "impacts the minor's estate and the property rights personal to the minor."

A short-shifted discussion was then had about how commercial activities could afford insurance and/or pass the cost along to the consumer; hence the differential treatment.

Justice Wells concurred but noted that "until today, this Court has never held that such a pre-injury release knowingly executed by a parent is unenforceable." He further pointed out, given the number of cases on point, that the Legislature certainly had the opportunity to outlaw such provisions -- and didn't. He concluded, "it is fundamentally unfair to now declare a new public policy and then apply it to the defendants in this case."

While Florida parents will likely collectively sigh with relief, this new public policy which divides commercial and non-commercial activity into two poorly-defined camps may lead to confusion -- if not mistaken decisions -- involving signing releases in quasi-commercial (or questionably non-commercial) activities.

Full post as published by Florida Arbitration Law on January 06, 2009 (boomark / email).