By Gabrielle D’ Alemberte - Law Offices of Robert L. Parks
With summer upon us, many South Florida parents are making plans for summer camp and family vacations, but it’s a good idea to think twice before signing a child liability release or waiver. Always consider carefully whether to sign away your family’s legal protection against a company’s negligence. If someone is careless and your child is injured playing sports, at a camp or at a resort, the person or company should be held responsible.
Fortunately, a recent Florida Court of Appeals ruling may make it easier for parents to assert their legal rights in the event of a child’s injury. The case involved 5-year-old Jessica Applegate, who was visiting a wake boarding camp several years ago. She was being towed by a cable when she fell off her board and was struck by the next person’s board.
Jessica’s family sued the company operating the camp, claiming that the operators were negligent in many ways and that this negligence caused Jessica’s injuries. A jury agreed with the Applegates and awarded Jessica damages for her injuries; but the company appealed and claimed that a liability waiver signed for Jessica by her parents protected them from legal responsibility for their carelessness.
After hearing the arguments in the case, the Florida Court of Appeals ruled that commercial, for-profit enterprises, like the water-boarding camp, could not hide behind “exculpatory contracts,” the agreements that insulated them from liability for their negligence in cases involving children.
Their reasoning was simple — Florida’s public policy favors protecting children and placing the responsibility for ensuring safety with the person or entity best able to achieve that goal. In this case, that was the camp. The court also noted that Florida’s public policy favors protecting children from the potentially bad decisions of their parents, including the decision to insulate potentially negligent parties from liability.
After examining this issue in 2009, the Supreme Court of Florida reasoned that children, because of their youth and inexperience, lack the wisdom necessary to make informed and safe decisions about waiving liability. The court said that business owners owe their patrons a duty of reasonable care and must maintain a safe environment for the activity they provide.
If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed, according to the court. However, the court strictly limited its decision to for-profit businesses and not non-profits or governmental agencies.
With these important rulings, the courts have moved to safeguard the rights of parents and children. Even if you signed a waiver or release, you may have a case against the business owner or operator, which is good news when summer safety is concerned.
By Gabrielle D’ Alemberte
Partner
Law Offices of Robert L. Parks
2121 Ponce de Leon Blvd., Suite 505
Coral Gables, FL 33134
305-445-4430
www.robertlparks.com
South Florida Legal Guide Midyear 2010