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When can a Florida parent promise not to sue?

Have you ever signed one of those releases promising that you won't sue, so that your kid could take part in an activity?

Well, the Florida Supreme Court just ruled that they are not valid for commercial purposes — go-cart races, all-terrain-vehicle courses and that kind of thing.

The practical result is that these Florida businesses can now be sued if kids get hurt. They'll either have to make sure they have good insurance, make sure they don't have accidents, stop allowing kids or go out of business.

Just to be clear: This ruling doesn't deal with the waivers that parents sign for nonprofit activities such as school and church groups, Boy and Girl Scouts and so forth.

But critics are worried that even for those groups, the line between "commercial" and "nonprofit" will be blurred, and will lead to more lawsuits.

Is a school field trip to an attraction that charges admission "commercial"? What if the kids get there on charter buses? What if a Scout troop goes to Disney World?

"Every county in Florida is going to be affected to some degree," predicts Adam Babington, a lawyer for the Florida Chamber of Commerce.

But the lawyer who won the case says it means only that businesses no longer have total immunity because parents sign a piece of paper saying, "It's okay if you hurt or kill him."

The lawyer, Bard Rockenbach of West Palm Beach, says businesses should be able to operate safely without requiring parents to sign away their rights. "It's the threat of getting sued that makes people behave reasonably and keeps kids safe," he says.

The case of Kirton vs. Fields was born on May 10, 2003, at a motorsports park in South Florida. A father allowed his 14-year-old son to ride an all-terrain vehicle, which landed on top of him during a jump and killed him. The personal representative of the boy's estate sued the park.

The trial court ruled that the father had willingly signed the waiver and ruled for the racetrack. An appeals court reversed the ruling. The case went to the Supreme Court.

The vote in the court's Dec. 11 ruling was 4-1. The majority found that a child has his or her own lifetime interest, personal and property rights that a parent cannot simply fork over to a business.

"It cannot be presumed," the opinion said, "that a parent who has decided to voluntarily risk a minor child's physical well-being is acting in the child's best interest."

The lone dissenter was Justice Charles T. Wells, who said the court was making up a legal standard that ought to be up to the Legislature.

Wells has a point. On the other hand, our Legislature is famously anti-lawyer and anti-lawsuit. It would be easy just to pass a law saying that parents can waive the right to sue no matter what.

I can already hear the rhetoric about "trusting parents to make decisions concerning their own children."

But the question is whether we trust all parents all the time to make the right, fully informed decision — and that if they make the wrong one and get their kid killed or permanently injured, that it's just fine by the rest of us.

If so, then the Legislature should pass an "anything goes" law that restores the power of parents to waive their kids' rights for any activity, no matter the danger. If not, the Legislature needs to come up with something else. I vote for "something else."

When can a Florida parent promise not to sue? 12/20/08 [Last modified: Tuesday, December 23, 2008 11:29am]
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