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It's The Law: Parental Release On Behalf Of Minor May Be Unenforceable

Q: My son wanted to ride go carts at a local track. Before the track let him ride, I had to sign a release form on behalf of my son. My son ended up driving off of the track and broke both legs. The track operator says the track is not liable because I signed a release. Is that correct?

A: In a decision released a few weeks ago, the Florida Supreme Court answered this question in the case of Kirton v. Fields. In the Fields case, a father signed a release so his 14 year old son could ride his all terrain vehicle at a motor sports park. The boy lost control of his ATV, was ejected and died. The personal representative of the estate sued the park for wrongful death. The park claimed the suit was barred by the release and waiver executed by the boy's father.

The Supreme Court explained that enforceability of pre-injury releases concerns 2 compelling interests, the parent's interest in raising their children and the state's interest in protecting children. The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects parents' right to make decision concerning the care, custody and control of their children. However, those parental rights are not absolute and the State, as the ultimate guardian of its people under disability (and children are disabled by their minority) can over rule a parent's decision.

Florida's intermediate appellate courts had reached divergent decisions concerning enforceability of such releases. In Lantz v. Iron Horse Saloon, Inc., the court found a release enforceable when a child was injured while operating a "pocket bike." Other cases created a distinction between community and school supported activities on the one hand and commercial activities on the other. Those decisions upheld releases if involved with a community or school supported activity but declared them unenforceable in commercial activities.

Noting that Florida's appellate courts did not all reach the same conclusion with respect to enforceability of such releases, the Florida Supreme Court then discussed out of state cases. Those cases would not be binding, but their logic could be persuasive. The court noted the only cases it could find upholding such releases involved participation by a minor in school-run or community-sponsored activities.

The Court then explained that under Florida law parents have a fundamental right to make decisions about their children, but the question of whether a parent should be allowed to waive a minor child's future tort claims involves wider public policy concerns. The decision to allow a minor to participate in a particular activity is a fundamental right of a parent, but that does not create a right to execute a pre-injury release on behalf of a minor child.

The Court explained it could not assume a parent who has allowed a child to engage in a dangerous activity is acting in the child's best interest. The Court also found injustice when a parent waives tort claims of a minor child thereby depriving the child of a legal right to relief if the child injured as a result of another party's negligence. If such a release is enforceable, the party causing injury escapes liability while the parent, other family members and people of the State bear the emotional and financial burden of the injury. The Court opined that a parent signing such a release is not protecting welfare of the child, but instead protects the interest of the activity provider.

The Court went on to point out that a commercial business could take precautions to insure a child's safety and acquire insurance to protect itself from claims of injured minors. A minor child cannot insure himself or herself against the risks involved with participation in the activity.

The Court held that pre-injury releases executed by a parent on behalf of a minor child are unenforceable against the minor child or the child's estate in a tort action arising from injury resulting from participation in a commercial activity. The Court did not hold such releases unenforceable when a community or school sponsored activity is involved, so it is possible releases are still enforceable in those activities.

Your son's claim against the commercial park operator may be pursued in court. Evidentiary issues must be addressed, including proof of negligence on part of the park operator. Various claims that might be brought against the park can ultimately be barred by the statute of limitations if not timely and properly pursued. You should consult with an experienced attorney as soon as possible to discuss the facts and circumstances of this matter.

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