Over the weekend, general counsel for a large Florida corporation asked me if her company should even bother to have parents sign waivers for their children who tour the company grounds or even ride bikes on the property.

Lawyers around the nation might go wide-eye at the heretical suggestion of foregoing waivers for corporate events or activities, especially those involving children. However, as we've discussed several times since Global Travel Marketing, Inc. v. Shea, Florida courts have created a public policy conclusion that waivers for children, signed by parents, are NOT enforceable if the children are participating in non-academic, commercial activities.

Examples where Florida courts have invalidated waivers signed by parents: (1) waiver signed so 14-year old could ride at motorcross park NOT ENFORCED, (2) waiver signed so high school girl could participate in cheerleading ENFORCED because it was a school activity, (3) waiver signed so five year old could participate in watersports at a commercially-run summer camp NOT ENFORCED and (4) parent-signed waiver to take child on safari vacation NOT ENFORCED.

So what can a Florida company do regarding waivers for participants under 18 years old when the company undertakes any interaction with the public, such as permitting visitors on the property, charging for any physical or sporting activity, sponsoring an 5k race, or offering trips? Unless the company can claim a community or school connection, the precedent above suggests that a parent-signed waiver is not worth the paper it is written on. A waiver signed by the child, likewise, has little legal value. Arguably the company could ask the both child and parent to sign and simply run the risk that nothing will happen -- or just refuse to allow child participants.

A better idea is NOT to attack the liability side of the equation. Likely, a company hosting an event fears being sued for some form of negligence or other tort. Torts, including statutory claims, have elements which include both liability and damages. Since a liability waiver does not work, the answer then is to focus on preventing exposure to damages. If the parent cannot sign away liability, the parents CAN still absorb any damages. The answer is to have parents sign an agreement which allows the child to participate in the event AND where the parents agree to defend and indemnify the company for any potential claim brought by the child. Thus, the parents would be exposed to the potential damages, not the business. Moreover, the parents bear whatever burden or risk associated with a child undertaking activities such as vacations, motorcross, cheerleading, or water sports.

The caveat, of course, is that there is no case law supporting this legal strategy, likely because Florida's precedent is fairly new and businesses have not been quick to realize the change in the law and modify their waiver forms (some company executives already eye their own liability waiver form with some distrust as to whether it will stand up in court and figure that it is not worth investing the money to revise). Many lawyers are not even clued into the change in the law -- moreover, lawyers provided by insurance companies may not get the know their clients well enough to take that extra step to propose thoughtful revisions to a company's form contracts.

Indemnity provisions are used several times a day in settlements of tort claims and can be fashioned in a parent-signing-for-child scenario. Likely, we are going to see a slow, incremental change only after more companies are sued and their forms invalidated.

I recommend a cogent, clearly-worded form which clearly explains to the parent the implications and, if a client would agree, offering the parents a few days to consider or consult an attorney. Training employees to properly respond to questions (or route to the legal department) and to confirm signatures is also critical.