New Florida law allows a parent to sign away a child’s right to sue for injuries.Posted: September 13, 2010
However, the law only protects commercial activities, not non-profit activities or volunteers.
April 27, 2010 the governor of Florida signed into law a bill that overcame the effects of Kirton v. Fields, 997 So. 2d 349; 2008 Fla. LEXIS 2378; 33 Fla. L. Weekly S 939. Kirton held that a parent could not sign away a minor’s right to sue. See At least three bills are moving through Florida Legislature to allow a Parent to Sign away a Minor’s right to sue.
The new law allows commercial businesses to use a release or minors. If your release is written properly and contains the proper language, the release is valid against a claim by an injured or deceased minor if:
- You informed the parent or guardian of the inherent risks of the activity; or,
- The risk that injured the child was not inherent or was intentional.
The law Florida Statute § 744.301 (3) states:
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE
AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF (name of released party or parties ) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM (name of released party or parties ) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND (name of released party or parties) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.
3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.
(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.
So now what?
The law is great. However, you are going to need an attorney to write your release if you want your release to be valid. The statutory language is specific in the requirements, yet somewhat complicated.
You will have to make sure you have identified, in a way that you can prove, the risks of the activity the child is going to encounter. Either in writing or some other from that you can prove the parent saw.
Your release is going to have to be written containing the proper language to me the statute of Florida on releases in general and this statute, specifically.
You must be a commercial activity.
This last section is (3)(d) does not seem to apply to non-profit organizations. Whether it applies to volunteers of non-profits is also not clear. However, you can require arbitration, which has been upheld for minors in Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 or rely on Gonzalez v. City of Coral Gables, 871 So. 2d 1067; 2004 Fla. App. LEXIS 6612; 29 Fla. L. Weekly D 1147, which held a release was valid for a non-profit that was sponsored of a municipality.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
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