Children/Parental Liability Waivers & The 2010 Florida Legislature

In December, 2008, the Florida Supreme Court, in Kirton v. Fields, 997 So.2d 349 (Fla., 2008), held 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.

In Kirton, 14 year old Christopher Jones died in an ATV crash at a motorsports park. Prior to the crash, his father had signed a release and waiver of liability, assumption of risk, and indemnity agreement to allow his son to ride at the park. Subsequently, Fields, as personal representative of the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. (“the Kirtons”) as owners and operators of Thunder Cross Motor Sports. The trial court entered an order granting the Kirtons’ motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material fact because the release executed by Mr. Jones on behalf of his minor child, Christopher, barred the claim. On appeal, the Fourth District reversed the trial court’s order granting the motion for summary judgment. The Florida Supreme Court’s majority opinon – one dissent (Wells, J) and two non-participants (Canady and Polston, JJ) – resulted from an appeal of the 4th DCA’s decision.

The Florida Supreme Court framed the enforceability of a pre-injury release as involving two compelling interests: that of the parents in raising their children and that of the state to protect children. In its lengthy opinion, the Florida Supreme Court referenced the 4th DCA’s reliance on the absence in Florida of any common law or statutory law authorizing parental releases, although it did not explicitly adopt or decline this reasoning as the basis for its own opinion. Nevertheless, some Republican members of the Florida Legislature read the court’s opinion as meaning that a statute can authorize pre-injury parental releases. Accordingly, various bills are before the 2010 Florida Legislature designed to authorize parental waivers. (See SB 1578. From linking to this bill, the other bills can be seen.)

Making pre-accident releases unenforceable only means that commercial enterprises can be held to account for the negative consequences of their negligent acts. In other words, they cannot hide behind releases to avoid liability for negligent behavior. It does not mean, however, that commercial enterprises are strictly liable for every accident without regard to fault. That standard is not even close to being the law in Florida. Release or not, no fault means no responsiblity. In essence, then, what some Republican legislators would like to accomplish through the aforementioned proposals, is to immunize certain business enterprises from liability regardless of fault.

This is a terribly dangerous standard and even more frightening when considered in the context of children.

(For updated information about this legislation, see this blog).

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.