By Doyice Cotten
The Florida Supreme Court (Kirton v. Fields, 2008) has ruled that parental waivers designed to protect commercial entities from liability for negligence are not enforceable. Florida appellate courts, however, have enforced parental waivers when used by schools or recreational entities (Krathen v. School Board of Monroe Country, Fla., 2007; Gonzalez v. City of Coral Gables, 2004).
In 2013, the Florida Legislature passed F.S. 744.301 which stated:
(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.[Bold added.]
This grants authority for guardians to sign waivers used by commercial activity providers on behalf of minor children, but such waivers are limited to injury or loss due to the inherent risks of the activity; they do NOT protect the provider against liability for injury or loss incurred due to provider negligence.
The statute further states that for such a waiver to be enforceable, it must 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:
NOTICE TO THE MINOR CHILD’S
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.
The statute adds that the waiver is rebuttable only if 1) the waiver does not comply with the statute subsection or 2) there is convincing evidence that the injury was not due to the inherent risk of the activity.
Risk Management Takeaway
Liability waivers aimed at minor clients used by commercial entities in Florida should follow the directives in the statute. The waiver will not protect the entity from liability for provider negligence, but should protect against liability for injury or loss resulting from the inherent risks of the activity.