By Michael Hancock

Consider that Florida markets its huge tourist industry as a fun place for our children, promoting its rental of jet skis, parasailing, and snorkeling tours.  These commercial businesses cater to  provide entertainment to our children, but then ask us as parents to sign waivers agreeing not to hold the business responsible if our child is injured taking part in that advertised activity.  In Florida, can these pre-injury releases actually be enforced?

In the case of for-profit, commercial businesses, there is not an easy answer in Florida.  In short, it depends on (1) if the injury results from an inherent risk in the activity or (2)  if the injury results from negligence on the part of the commercial activity provider (or its employees) of the inherently risky activity.  Further, waivers or releases which attempt to release the commercial activity provider from its own acts of negligence are not enforceable.  A discussion of the Florida Supreme Court decision in Kirton v. Fields and the 2010 changes to Florida Statute 744.301 may be helpful. 

In Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), the Florida Supreme Court held that a pre-injury release executed by a parent on behalf of a minor child is not enforceable against the minor (or the minor’s estate in the case of death) arising from injuries resulting from participation in a commercial activity. In Kirton, a minor child was killed in an accident while operating an ATV (all-terrain vehicle) at a sports park. The Court ruled that a parent’s authority to execute a pre-injury release on behalf of a minor child does not fall within the purview of Florida Statute 744.301(2). The Kirton court further ruled that Florida Statute Section 744.301 applies to situations where a minor child already has a cause of action against another party whereas a pre-injury release is executed before any cause of action accrues and extinguishes any possible cause of action.

In response to the court’s decision is Kirton, and strongly lobbied by Florida’s tourism industry, the Florida Legislature effectively reversed the Kirton decision and  amended Florida Statute Section 744.301 by creating a new subsection (3).  This new subsection authorizes natural guardians (parents are natural guardians) on behalf of any of their minor children, to waive and release, in advance, any cause of action against a “commercial activity provider”, which would accrue to the minor child for personal injury, including death, resulting from an “inherent risk” in the activity.  However, this pre-injury waiver or release does not apply if the injury results from negligence by the commercial activity provider or its employees, instead of from the inherent risk of the activity. 

“Commercial activity provider” is not specifically defined in the statute, but presumably applies to for-profit businesses such as ATV, jet ski and parasailing rentals.  However, the statute does specifically state that it does not limit the ability of parents to waive and release, pre-injury, any claim against a non-commercial activity provider, or its employees.  Presumably, “non-commercial activity provider” would include not-for-profit schools and charities. 

“Inherent risk” is defined in the statute as “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 failure by the activity provider to warn of an inherent risk, and 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 child.  

Thus, the new statute does not authorize a parent to execute a pre-injury release on behalf of a minor if the language attempts to release the activity provider from injury caused by its own negligence or that of its employees.  In other words, waivers or releases which attempt to release the commercial activity provider from its own acts of negligence are not enforceable. 

Further, in those limited situations where the injury to the child results from the inherently risky commercial activity, the release which was signed pre-injury by the parent must have been in the form specifically set out in Florida Statute Section 744.301(3):

(3)(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.

Even if the pre-injury release follows this statutory form, there is a rebuttable presumption that the waiver or release is valid, not conclusive proof.   To rebut the presumption that the waiver is valid, the claimant must demonstrate by a preponderance of the evidence that the waiver does not comply with the requirements of the law and must show that the cause of the injury was not an inherent risk of the activity.  

The new law provides that these "inherent risks" must be defined and include but are not limited to any dangers or conditions known or unknown which are characteristic of the activity. In addition, these risks include any negligent act that the minor child may engage in, but fortunately does not protect the negligent acts of the owners, affiliates, employees or agents of these facilities. The release must be printed in a minimum of 8 point type or larger, while the section defining the inherent risks, must be at least 5 points larger, in an attempt to assure that guardians can clearly distinguish this section from all others.

In conclusion, as of this writing, parents need to be cautioned that the pre-injury waiver may be held enforceable, but only for those injuries caused by dangers inherent in the activity and only if the specific statutory requirements as to the form are included in the waiver.   However, pre-injury releases do not shield commercial owners and operators from injuries caused by their own negligence.