A new brewing conflict in Florida relates to parents' ability to waive their children's rights when the parents sign contracts which include exculpatory releases and/or arbitration clauses. It appears these two differing clauses will get different treatment under this developing area of Florida law. Before we get to our cheerleader case, some background is necessary.

The present authority is Shea v. Global Travel Marketing, Inc. which found that arbitration clauses in contracts signed by the parent can compel the minor to arbitration since "parents who choose to allow their children to engage in these activities may also legitimately elect on their children's behalf to agree in advance to arbitrate a resulting tort claim if the risks of these activities are realized." BUT, that decision repeatedly warned that the Supreme Court was not analyzing the exculpatory release -- just the arbitration clause.

Thereafter, in August 2007, the issue was re-ignited with the Fourth DCA's decision in 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. Briefly, a minor was riding motorcross at a motorcycle park and injured himself; the parents had signed a pre-injury exculpatory release. Recall the Fourth DCA had been reversed by the Supreme Court in Shea, but that decision was limited to arbitration. Thus, the Fourth DCA still had an open legal field to issue its ruling against parent-signed exculpatory waiver clauses, stating: "[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 Third DCA now enters the fray with Rachel Krathen vs. The School Board of Monroe County, Florida. Krathen's suit alleges that she was injured during cheerleading practice and that the school failed to supervise, have coaches present, have protective mats, and/or follow procedures. Her injuries were not specified in the opinion. It is unclear if this cheerleader in the 3rd row is the plaintiff. The exculpatory language in the Consent and Release from Liability Certificate is not repeated in full in the opinion (a pet peeve of ours) but it releases the school for liability of "any injury or claim resulting from... athletic participation."

Krathen presents an interesting twist since she, as an individual minor, signed the agreement as did her parents. The court pointed out, in a footnote, that it analyzed this case based upon just the parents' signature, not the daughter's signature.

The Krathen panel interestingly undertook a long discussion of Shea even though that decision plainly stated it was analyzing the parental authority regarding arbitration, not exculpation. That point was not made clear in Krathen. We're assuming this analysis was done to show that the Third DCA panel was at least considering this case with guidance from how the Supreme Court viewed parental authority in Shea.

Nonetheless, following an older 2004 Third DCA case, the panel held that this release was clear and unambiguous and that the activity fell within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child's litigation rights in authorizing the child's participation.