Arbitration & Mediation

Just in Time For Summer, Parent's Agreement to Liability Waiver in Child's Camp Release is Not Enforced

By Christopher B. Hopkins, Esq.

Florida intermediate appellate courts, believing they are following the will of the Florida Supreme Court, have been claiming that public policy prohibits the enforcement exculpatory clauses signed by parents for their children when the other contracting party is a commercial enterprise. The developing legal theory rests on ephemeral public policy grounds as well as oblique statutory references -- but the exceptions to this vague rule lack any real legal grounding. And that's something plainly obvious in the oft-cited statutory authority -- which doesn't even apply to these cases. While we believe there likely are limits to the enforcement of these waivers, three intermediate appellate courts have clearly found themselves a comfortable line to be drawn but have yet to truly develop the legal authority for their sentiment. That said, the Third, Fourth, Fifth DCAs are developing a pretty solid precedent.

For readers of this blog, this has been a repeated topic because it is interesting and it affects a lot of parents. The issues of parental signatures on exculpatory "liability waivers" for children first popped on the scene with the 2005 case of Global Travel Marketing, Inc. v. Shea where a parent signed a waiver to bring her child on a safari where the minor was killed by wild animals (more specifically, a 25-day safari for $39,000 in Botswana and Zimbabwe). The travel agreement contained an arbitration clause, which the Florida Supreme Court said was enforceable (i.e., parents have the authority to agree to arbitrate their child's tort claims by signing a pre-injury arbitration agreement). The clear hint, however, was that parents might not have the authority to sign exculpatory clauses for their kids. Such a principle rests upon the touchy legal grounds where the State's interest as the parens patriae (parent of his country) can overcome the parents' privacy rights over the children -- a government authority which the Florida Supreme Court acknowledged was typically left to child custody and juvenile delinquincy matters. Notably, the High Court repeatedly confirmed that it was ruling on the arbitration clause and not the exculpatory clause.

Time went on and we examined cases where the intermediate courts confronted parental waivers of liability for their children. In Estate of Christopher Jones v. Thunder Park, a child was permitted to ride motorcross bikes after his parents signed the waiver. Having injured himself before on the same jump, the minor ended up killing himself on another attempt. In interpreting the exculpatory clause, the Fourth District 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." Thus, weaving together various precedents, the Fourth District (which had originally decided Shea) hatched the Florida precedent that parent-signed-exculpatory releases are against public policy if the contracting company is commercial.

The Third District thereafter received the case of Rachel Krathen v. School Board of Monroe County where a student was injured during cheerleader practice. The Krathen panel held that the 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. Thus, applying the Fourth District's reasoning to a different set of facts, the Third DCA did allow this waiver to stand.

Now the Fifth Circuit weighs in with Steven and Suzanne Applegate et al. v. Cable Water Ski, L.C. et al. where a five year old was injured when being pulled on a wakeboard by a water ski cable at camp. No details of the camp were provided but it appears to have been a commercial enterprise. The question was whether the exculpatory waiver of liability signed by the parent was valid. The Court -- consistent with the Fourth DCA's Thunder Park case -- held that it was not enforceable because the ski company was a commercial enterprise.

The Fifth DCA (Torpy, Sawaya and Evander) noted Florida's public policy of protecting children and the State's parens patriae authority which, at times, was broader than the parents' authority. The panel noted that the "expression of that policy" is found in the legislative limitation on parental authority to settle post-injury claims in Florida Statutes 744.301(2).

According to the Fifth DCA, the bar on such parent-signed-waivers is limited to commercial enterprises since they can insure against the risk of loss and include that in the price of participation. The court could, on the other hand, envision a public policy distinction for non-profits.

Without question, the Third, Fourth, and Fifth Circuits are all under the same banner with these three opinions. As the issue gets narrowed, and some entity is both commercial and school/community-based, we might see some differences arise. Until then, there is harmony.

But even the Florida Supreme Court noted that the "expression" of this public policy against allowing parents sign away a child's litigation rights is not well grounded. Section 744.301(2) involves the legislation requiring court approval of settlements for children AFTER the dispute has arisen. In Shea, Florida's High Court admitted, "there is no comparable statutory scheme governing pre-injury liability releases and arbitration clauses..." Whether that be poor statutory drafting or otherwise, the "expression" of this public policy which the intermediate appellate courts have relied upon does not apply (in Applegate, the panel talks about both Shea and the statute but omits that the Supreme Court acknowledged this gaping hole).

Moreover, at least some of the public policy behind the court-approval statute was to prevent parents from pocketing the proceeds. That's a far cry from parents who are willing to sign waivers just so their kids can participate.

Also, while there is a great body of parens patriae authority, even our High Court has recognized it is typically limited to delinquincy and custody matters -- where parents are not doing their job of child rearing, failing at that job or refusing to accept their parental obligations. To now bring that policy directly into the the risk-benefit analysis of allowing children to participate in sporting events suggests a serious leap of subject matter... all based off of loose notions that community based organizations aren't looking at bottom lines; are somehow better self-regulated; and can't afford insurance.

Full post as published by Florida Arbitration Law on May 01, 2008 (boomark / email).