More on Parental Waivers in Florida

By  Doyice  and Mary Cotten

On February 7 of this year we posted an article “Updating Parental Waiver Law — Part I

updating laws regarding parental waivers in Florida and a number of other states. The Florida statute addressed was s. 744.301 in which the legislature authorized parental waivers for injuries or loss resulting from the inherent risks of the activity (but NOT from the negligence of the provider).

In this article I want to make our readers aware of another statute that might be important to parties signing or relying on parental waivers in Florida. Florida statute s. 549.09 reads:

(2) Any person who operates a closed-course motorsport facility may require, as a condition of admission to any nonspectator part of such facility, the signing of a liability release form [emphasis added]. The persons or entities owning, leasing, or operating the facility or sponsoring or sanctioning the motorsport event shall not be liable [emphasis added] to a nonspectator or her or his heirs, representative, or assigns for negligence which proximately causes injury or property damage to the nonspectator within a nonspectator area during the period of time covered by the release.

A “Nonspectator” means an event participant who has signed a motorsport liability release or, in the case of a minor, whose natural guardian has signed [emphasis added] a motorsport liability release on behalf of the minor. A subsequent paragraph makes it clear that this authorization to require a waiver applies to minor nonspectators wishing to enter the nonspectator area and that the waiver is valid for both adults and minors.

(b)1. If a minor is participating in a motorsports event as defined in s. 549.10, the motorsport liability release must comply with the requirements of this section and is valid [emphasis added] to the same extent provided for other nonspectators under this section.

2. If a minor is participating in an activity at a closed-course motorsport facility, other than [emphasis added] a motorsports event as defined in s. 549.10, a waiver or release must comply with the requirements in s. 744.301(3) and is valid only to the extent, and subject to the presumptions, provided in that subsection.

As can be seen in statute s. 549.10, a motorsports event “means a motorsports race and its ancillary activities that have been sanctioned by a sanctioning body. A “Sanctioning body” means the American Motorcycle Association (AMA), Auto Racing Club of America (ARCA), or a number of other bodies listed in s. 549.10.

The statute ( s. 549.09) makes it clear that this is a limited exception to the statute (s. 744.301 (3)) allowing parental waivers of liability for inherent risks only. It is clearly stated in s. 549.09 that this authorization for waivers for minor participants is restricted to those minors participating in sanctioned motorsports events and does not apply to minors participating in any other sports or activities. Parental waivers for other sports or activities must comply with s. 744.301 (3) which reads:

(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 [emphasis added] in the activity.

Further, the statute ( s. 549.09) provides that such waivers apply only to what is usually referred to as “ordinary negligence” (including misfeasance, nonfeasance, and failure to warn of existing or future dangerous conditions) and does not include gross negligence, recklessness, or willful and wanton conduct.

In brief, the effect of s.549.09, as it relates to minors, is that the operator of a closed-course motorsport facility can protect the operation from liability for ordinary negligence with a liability waiver signed by the parent or guardian if the minor is participating in a sanctioned motorsports race and its ancillary activities.

Photo Credit: Thanks to Alexis Bea (http://www.flickr.com/photos/alexisbeaphotography/)