In the last year, three Florida DCA's have addressed the validity of exculpatory clauses which eliminate a consumer/customer's right to sue. Although disfavored, these pre-injury waivers can survive and be enforced if they are sufficiently clear and devoid of ambiguity. Our discussions are here.

Arbitration and exculpatory clauses overlapped in Global Travel Marketing, Inc v. Shea which the Florida Supreme Court decided in 2005. In that case, a parent took a child on an African safari and the child was pulled from his tent and mauled by hyenas. The safari contract included an arbitration clause and an exculpatory clause. The question was whether the parent could bind the child to arbitration -- with the issue of whether the parent could bind the child to the exculpatory clause was left hanging out there.

Shea discussed a number of interesting issues:

1. Public policy supports parent-signed waivers for medical care, insurance, or school/community events;
2. Florida has "parens patriae" authority to protect children in juvenile delinquency and dependency matters;
3. Pre-suit settlement of claims over $15k for minors requires court authorization under F.S. 744.387
4. BUT, "there is no comparable statutory scheme governing pre-injury liability releases and arbitration clauses..."
5. The 14th Amendment gives parents authority to make decisions about "activities appropriate for their children...[including] physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or, in this case, an adventure vacation in a game reserve."

Shea repeatedly (we counted three times) stated that it was decided the parent's right to sign a pre-injury arbitration clause and that the decision was NOT deciding or commenting on whether the parent had authority to extinguish a child's right of recovery by singing a pre-injury exculpatory agreement.

With Shea tucked firmly under our arm, it was only a matter of time for those of us on the legal journey to come across a set of facts where a parent signs a pre-injury exculpatory waiver. Coincidentally, it arises in the 4th DCA, where Shea was originally brought (note, the Supreme Court quashed the 4th DCA's opinion in Shea).

Enter Jordan Fields as PR for the Est. of Christopher Jones v. H. Spencer Kirton; Scott Corey Kirton and Dudley R. Kirton d/b/a Thunder Cross Motor Sports Park; Kirton Brothers Lawn Service, Inc.; and Dean Dyess. In this case, a 14-year old boy's parent signed a pre-injury exculpatory agreement which allowed him to enter the motorcycle park. The boy had previously tried a jump which landed him in the hospital with broken bones. On this trip, he tried the same jump again, lost control, and died after the bike landed on top of him.

For those interested, a slightly outdated website for Thunder Cross is here. That said, this website suggests the park was sold for home development. The Palm Beach Post ran this story on the appeal. Youtube has this 2006 video which may not be the same minor on an ATV.

In Fields, Judge Roby at the trial court level entered summary judgment upholding the waiver. As Florida appellate courts are often fond of doing, the 4th DCA reversed. The 4th acknowledged that the Florida Supreme Court's Shea decision specifically skirted the issue of the enforceability of a parent signing a waiver for a child. The 4th also noted that "courts have consistently held that a waiver executed by a parent on behalf of a minor is supported by public policy when it relates to obtaining medical care, insurance, or participation in school or community sponsored activities.

As the 4th DCA sees it, this is not a question of controlling what the parents allows children to do, it addresses "the effect of the release insulating the provider of the activity from liability..." The decision to absolve the provider from liability "goes beyond the scope of determining which activity a person feels is appropriate for their child." Thereafter, the court discusses "certain risks" inherent to scuba or sky diving but then distinguishes negligence where the diver goes too deep or the pilot is intoxicated. This is curious since there is no reference in Fields to what alleged negligence is at issue or if the fatal injury was simply part of the inherent risk of motorcross.

The bottom line is that, "[t]he 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." The court goes on to reference the statutes requiring court approval for claims of damages to minors under Chapter 744.

This case is certainly not over. There is a direct conflict with Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998) and the 4th DCA (as they did in Shea) again certified the issue as one of great public importance.

Obviously, this decision is going to have a significant impact on scuba diving, motorcross, and any other physical activity events where parents sign waivers (presumably outside of school or community events). We note the involvement of several associations which filed amicus briefs. Again, more is expected at the Florida Supreme Court level. The outcome, if the Plaintiff wins, will be to void any parent-signed exculpatory clauses for these kinds of events which, in turn, will likely lead these event providers to deny access to kids under 18 (and hurt their business). We'll be watching.

P.S. for those interested in post-Shea cases, check out Nichols v. M N Medinvest which went from 2nd DCA to Florida Supreme Court (see here).