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The Florida Supreme Court ruled in 2008 that liability releases signed by parents on behalf of their children will not be enforced.  The rationale used by the Court to invalidate such releases is that a parent does not have the authority to bind his or her child in a release that will prevent a child from recovering damages due to negligence or in a wrongful death case.  The Court drew upon the statutory scheme whereby courts must approve settlements for minors and that parents have no authority to bind their children for tort settlements without court approval.  The case is Kirton v. Fields, SC 07-1739 (2008).

The Florida Legislature, under lobbying efforts of Associated Industries and other business and insurance special interests, passed a law that was later signed by then Governor Crist on April 27, 2010 that restored parental authority to sign a pre accident release of tort claims for a child relating to injury or death.  The new statute overturns the Florida Supreme Court’s 2008 ruling in Kirton v. Fields, which declared such pre-activity releases unenforceable. The new statute requires specific language that must be included in the  release to ensure enforceability. The law took effect immediately and applies only to lawsuits involving incidents occurring on or after April 27, 2010.

In this author’s view, the Florida Supreme Court’s decision was a very positive sign that the Florida Supreme Court is willing to invalidate these releases in order to protect the children of the State of Florida from going uncompensated for being injured at the hands of a careless negligent tortfeasor.  The public policy of Florida should always remain strongly in favor of protecting children, and really, all victims of negligence.  It is unfortunate that this has become a cat and mouse game between the Court and the Legislature when the key principle of protecting the public health, safety and welfare of Florida’s children should be of paramount importance.  Having a state policy of immunizing negligent parties from liability for dangerous actions or conditions that harm children is bad because it fails to regulate unsafe conduct that can injury or kill children.

Liability releases, also known as exculpatory clauses, are looked upon with disfavor by courts because they go against the general public policy of compensating victims of negligence, and more importantly, holding negligent actors responsible for their carelessness and encouraging such actors to improve upon their safety practices and procedures.  The only counter weight in the law that allows exculpatory clauses to remain a part of our society is the public policy of encouraging the enforcement of private contracts.

This issue was addressed on May 11, 2011 by the Fourth District Court of Appeals in Claire’s Boutiques, Inc. v. Locastro, where in the court refused to uphold a pre-injury indemnification agreement signed by a parent. The court cited Kirton vs. Fields and found that the legislature did not intend to extend the policy of allowing pre-injury release enforceability to include indemnification agreements signed by parents which would actually be even more damaging to the family in that the family would be liable not only for the damages to the child but also for the legal costs and expenses in pursuing a court action.

I believe the day will come when the Courts will once again address this issue, and further, that the Legislature will ultimately make the right decision and make these types of agreements illegal or at least that they are to be presumed to be against public policy.  Under this more progressive standard, the general common law of negligence will prevail and parties that are at fault will be held accountable for the damages they cause and will not be permitted to hide behind such a contract of adhesion.  Until then, the Kirton v. Fields case remains a sound rationale that the Legislature can consider adopting to make a major step forward and a positive trend in Florida law.  If you have found this page because of an issue related to a waiver or release such as this, whether or not related to a child, there are still ways of invalidating the release and Judges in Florida have the legal power to do so under other well established legal precedent.