Cressman Law Firm, P.A.

I have been asked on many occasions whether the Release signed by a parent to permit a child to participate in sporting or entertainment activity is valid. The simple answer is that, generally, Florida Law does not support the enforcement of a pre-injury release/waiver of a future claim executed by a parent on behalf of a minor child. However, it also depends in which region of the State of Florida you reside whether such a Release is enforceable.

In order to bring some consistency to the law of Releases signed by parents on behalf of their children the Florida Supreme Court has recently agreed to hear a case where a father signed a release on behalf of his son so that he could participate and ride his all terrain vehicle (ATV) at a motor sports park. While attempting a jump, the son lost control of ATV and fell to the ground. The ATV landed on top of him. Unfortunately, the minor died as a result of his injuries.

By way of background, parents may make decisions affecting their children without governmental interference unless significant harm to the child is threatened by or resulting from these decisions. This is a right which is inherent to the American way of life. In Florida, the right is encompassed within Article I, Section 23 of the Florida Constitution – The Right of Privacy.

Florida courts have consistently ruled that waivers executed by parents on behalf of their children are supported by public policy when it relates to obtaining things such as medical care; or when the children are participating in school or community sponsored activities.

In the case to be reviewed by the Florida Supreme Court, the Defendants took the position that it was the inherent ability of a parent to make decisions about their children's welfare without interference by third parties and that their client, the Motor sports park should not bear responsibility for the son’s injuries. The trial court agreed and granted a judgment for the Defendants. On appeal, the Fourth District Court of Appeal which hears appeals from Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties, reversed the trial court. The Appellate Court decided that the issue did not involve restricting or precluding parents from deciding what activities may be appropriate for their minor children's participation. Instead, it looked at the effect the release had on insulating the provider of the activity from liability for negligence inflicted upon the minor. The court noted that the release caused “a forfeiture of the minor's property right to seek legal redress either through his parent or the appointment of a guardian ad litem.”

In doing so, it was noted that “the decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child.” The Court went on to note that the “decision to allow a minor to participate in an activity is properly left to the parents or natural guardian.” However, the decision by the parent to permit the child to participate in the activity does not contemplate that the person running or operating the activity will operate it such a negligent manner that the child will be injured not through his own activity but through the negligence of the operator of the activity or park. The effect of the parent's decision in signing a pre-injury release impacts the minor's estate and the property rights personal to the minor. These rights cannot be waived by the parent absent a basis in common law or statute.

It was clear that the waiver signed by the child’s parent constituted the forfeiture of his son’s property right to file suit for his injuries for the negligence operation of the motor sports park. That right was the child’s right and not the parent’s right. The Fourth DCA found that Florida law does not support judicial enforcement of a pre-injury release executed by a parent on behalf of a minor and reversed the trial court’s ruling.

At the same time, the Fifth District Court of Appeal, which covers the areas including Orange, Lake and Osceola Counties, has ruled that such releases are valid to bare a claim on behalf of a minor in similar situation. Therefore, with the conflicting opinions on the law between South Florida and Central Florida the Florida Supreme Court is now positioned to resolve the conflict. The case will be heard by the Florida Supreme Court on June 11, 2008.

If you have signed such a release and your child was injured participating in activities in Orlando, Winter Garden, Apopka, Clermont, or anywhere through Orange, Lake, Osceola, or Sumter counties call the Cressman Law Firm, P.A. today to speak with one of our attorneys about your case.