Enforceability of a Child’s Pre-Activity Release Signed by the Parent

At common law, Florida appellate courts had never found unenforceable, a liability waiver knowingly executed by a parent in advance of their child’s participation in some commercial activity.[1] That changed in 2008 when the Florida Supreme Court decided the case of Kirton v. Fields, 997 So. 2d 349 (Fla. 2008). Kirtondeclared pre-activity Releases executed by a parent on behalf of a minor child were unenforceable against the minor in a lawsuit arising from injuries following participation in a commercial activity. Id. at 358. The decision affirmed a lower court ruling by the Florida Fourth District Court of Appeal (Broward, Palm Beach, Indian River, Martin, Okeechobee and St. Lucie counties).[2]  

On April 27, 2010 however, Fla. Stat. § 744.301(3) became law. The new statute was designed to address the Kirton decision.[3]  It restored the effectiveness of a parent’s pre-activity Release on behalf of a child as follows:

[N]atural guardians are authorized, on behalf of their minor children, to waive and release in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.

See Fla. Stat. § 744.301(3). Under the new statute, “inherent risks” are those which are characteristic, integral or intrinsic to the activity and which are not eliminated even with the exercise of due care. Thus, a business which obtains a valid pre-activity release on behalf of a minor is only shielded from liability if the injuries arose as a natural part of the activity and, could not have been eliminated with the exercise of reasonable care by the business. The statute does not restore the pre-Kirton enforceability of the familiar, all-encompassing waiver of liability for injuries to child-participants resulting from the negligence of the activity provider.[4]

Clearly, Fla. Stat. § 744.301(3) overruled Kirton by at least ensuring a business could assert the existence of a parent’s pre-activity Release as an affirmative defense to a child-participant’s lawsuit. However, the new statute will not deter plaintiffs from filing or litigating such lawsuits. Even when injuries result from an “inherent risk” of engaging in the activity, the resulting lawsuit will certainly allege that some form of negligence by the activity provider permitted the child to be unreasonably exposed to such risk. As an illustration, it would be appropriate under § 744.301(3) for a skating rink to require a parent to sign a pre-activity Release for any injury to a child-skater resulting from dangers inherent in skating, such as collisions with other skaters or falls due to a loss of balance. Should such accidents result in a lawsuit however, the child’s lawyer will as a matter of course, allege wrongdoing by the skating rink. For example, the lawsuit will blame a loss of balance on defective rental skates or the presence of debris on the rink surface. A collision with other skaters will be blamed on deficient monitoring of skaters by the rink’s floor guards. Under the terms of under § 744.301(3), the effectiveness of the parent’s pre-activity Release will require the jury decide whether the injuries stemmed from negligence by the skating rink or, some unpreventable danger innate to skating. Thus, a parent’s pre-activity Release is unlikely to achieve summary dismissal of the litigation. 

The Judiciary Strikes Back
As a result of such limitations in § 744.301(3), activity providers looked for other ways to legally obtain what was truly needed: deterrence of the child-participant’s lawsuit before it is even filed. Clearly, the new statute did not alter Kirton’s prohibition against parental agreements to preemptively waive negligence claims in exchange for the child’s opportunity to participate. Therefore, businesses began to instead require the parent defend and indemnify the activity provider from any suits or claims by the child as a price for the participation in those activities fraught with risk of injury.

In Claire's Boutiques, Inc. v. Locastro, 2011 WL 1774437 (Fla. 4^th DCA 2011), the Florida Fourth District Court of Appeal addressed such indemnity agreements. As such, the Claire’s Boutiques case is the first Florida appellate decision to discuss the meaning of § 744.301(3) since its passage in 2010. In its decision, the Fourth DCA dismissed the Legislature’s rejection of the Kirton assertion of the Judiciary as authority on agreements intended to facilitate a child’s participation in an activity deemed worthy by the parents.

In the Claire’s Boutiques case, a lawsuit resulted after a mother took her thirteen-year-old daughter to the defendant’s boutique to have the daughter’s ears pierced. After the piercing, the daughter developed an infection in the cartilage of the ear that required hospitalization and extensive medical treatment. Id. Before the ear piercing however, the mother had executed a Release from Liability in which she agreed to “indemnify and hold Claire's Boutiques harmless with respect to [....] all claims that I or my minor child may make as a result of this ear piercing, even if due to the sole or joint negligent acts or omissions of Claire's Boutiques, Inc.” Id. After a trial, the daughter obtained final judgment against the defendant for $72,987. Id. at *2. However, the defendant also obtained summary judgment on its claim against the mother for failure to indemnify. Id. On that claim, the trial court entered judgment against the mother for $200,274 inclusive of defense costs, attorney's fees, and the judgment won by the daughter against the defendant.

Relying on the policy rationales expressed in Kirton, the Fourth DCA overturned the summary judgment in favor of the defendant in Claire’s Boutiques. The court held that an agreement requiring a parent to indemnify a third party for injuries to a child was void as against public policy. The court reasoned that such an agreement violated the rule that parents are generally immune from claims by their children, undermined “harmonious familial relations and parental discretion over discipline,” and “encouraged depletion of family resources” via filial lawsuits. See Id. at *4.

In addressing the irony in relying on public policy rationale from Kirton - a decision impugned by the Legislature in §744.301(3) - the Claire’s Boutiques Court wrote:

Th[e] statute permits parents [....] to execute pre-injury releases against commercial activity providers under certain circumstances, but those circumstances do not include releasing the commercial activity provider from liability for its own negligence. We think that this limit[ation] indicates a Legislative public policy choice that commercial providers should be liable for their own negligence when minors are injured. A parental indemnity agreement would be contrary to that intention.

Id. at *6. In essence, from a statute designed to restore parental authority abridged in the Kirton decision, the Fourth DCA paradoxically divined Legislative support for the impairment of a parent’s right to execute a contract indemnifying another in exchange for their child’s opportunity to participate in some commercial activity.

The dissent in Claire’s Boutiques pointed out that there were even stronger public policy reasons to enforce the parental indemnification agreement. Id. at * 7-8 (Levine J., dissenting in part). It was, after all, “an otherwise valid contract, and there is no statutory or precedential reason not to enforce it.” Id. at *8. Moreover, “a fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain.” Id. at *7.

The dissent also argued that after the passage §744.301(3), a change of common law in this area based on “public policy grounds” was exclusively the province of the Legislature. Id. at *8. In this regard, the dissent provided a more compelling argument as to the intent that could be surmised from the Legislature overruling Kirton via §744.301(3):

Section 744.301 [....] authorize[s] a parent “to waive and release, in advance, any claim or cause of action against a commercial activity provider ... which would accrue to a minor child for personal injury [....] resulting from an inherent risk in the activity.”

At the same time, the Legislature also excluded from this explicit grant of power, the right of a parent to waive his or her child's negligence claims against the activity provider.

[T]he Legislature [knows how to] give statutory guidance regarding settlement of a minor's legal claims [....]. The Legislature [....] offered guidance by prohibiting waiver of negligence claims, as evidenced by th[is] statute enacted in response to Kirton.

In the present case, the Legislature has not exercised that same authority to prohibit parents from signing indemnification agreements with third parties who provide commercial services to minors. One could postulate [....] that the lack of Legislative restriction could be just as reasonably interpreted as an approval of the indemnification agreement at issue in the present case.

If the Legislature wanted to foreclose the use of indemnification agreements by parents when contracting with third parties for services for their minor children, then the legislature would have acted.

Id. at *9.

As a result of the decision in the Claire’s Boutiques case, the Florida Judiciary once again treads into the realm of the Legislature to limit authority to execute a pre-activity contract to facilitate a child’s participation in an activity deemed worthy by the parents. Once again, parents may find their child refused participation in commercial activities because businesses will not accept the financial exposure of such participation; regardless of whether the parent has decided the benefit to the minor outweighs the risk of injury.   See Kirton v. Fields  997 So. 2d 349, 364 (Fla. 2008) (Wells, J., dissenting).

[2]     Fields v. Kirton, 961 So. 2d 1127 (Fla. 4th DCA 2007),

[3]       See Staff Analysis of Civil Justices & Courts Policy Comm. for H.B. 363, Reg. Sess. (Fla. 2009).

[4]     As a result of tireless lobbying by Florida plaintiffs’ lawyers, the Florida Legislature altered the final language of the statute to exclude from enforceability, a parent’s release of the risk that “the activity provider or its owners, affiliates, employees, or agents” [....] “may act in a negligent or intentional manner [....].” Fla. Stat. § 744.301(3)(a)2. See Jordan A. Dresnick, The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida,64U Miami L Rev 1031 at fn. 201.