Parens Patriae (“Father of the People”)

by

Fields v. Kirton (Florida)
(ATV Fatality; Court of Appeal Makes a Statement Against Parents’/Guardians’ Rights to Waive/Release Negligence Liability on Behalf of Minor Participants in Recreation Activities; Conflict Created in the Law)

A fourteen (14) year old boy died in an all terrain vehicle (“ATV”) accident. His father had taken the boy to the defendant motorsports park without the knowledge of the boy’s mother. In order to gain entry into the park, the father signed a release and waiver of liability, assumption of risk, and indemnity agreement on behalf of his son, which (by its terms) protected the park from negligence-based liability. Thereafter, the boy attempted to complete a jump, but was ejected from the ATV. The ATV landed on top of him. He tried to get up, but collapsed and died. The boy had unsuccessfully attempted the same jump one month earlier, resulting in a fractured rib and mild concussion.

The boy’s parents filed a lawsuit against the park and its owners/operators, alleging negligence in the operation of the facility. The defendants filed a motion for summary judgment based upon the release agreement signed by the boy’s father. The trial court granted the defendants’ motion and the plaintiffs appealed. On appeal, the court reversed the trial court’s decision.

The court reviewed the recent Florida Supreme Court decision of Global Travel Marketing, Inc. v. Shea, which concerned a parent’s ability to bind a minor to the arbitration of personal injury tort claims. In that decision, the court ruled that a minor can be bound by an arbitration provision. However, the Supreme Court distinguished the arbitration provision from waiver and release agreements in the context of recreational activities, and the Supreme Court expressly abstained from ruling on the enforceability of waiver and release agreements generally.

The Fields court explained that “[g]enerally, parents may make decisions affecting their children without governmental interference unless significant harm to the child is threatened by or resulting from these decisions.” The court was concerned about the effect of the agreement of “insulating the provider of the activity from liability for negligence inflicted upon the minor.” As a result, the agreement caused “a forfeiture of the minor’s property right to seek legal redress either through his parent or the appointment of a guardian ad litem.” The court noted that while a parent may elect to have his or her minor child participate in an activity, thereby assuming the inherent risks and dangers associated with that activity, allowing the activity provider to protect itself from negligence liability impacted the property rights of the minor which “cannot be waived by the parent absent a basis in common law or statute.” According to the court, there was “no basis in common law for a parent to enter into a compromise or settlement of a child’s claim, or to waive substantive rights of the child without court approval.”

In making the ruling, the Fields court acknowledged and specifically addressed the fact that the decision is in direct conflict with another published Florida decision (Lantz v. Iron Horse Saloon, Inc. – a pre-injury release signed by a mother so that her minor son could ride a pocket bike was enforced to preclude negligence liability). In light of the clear conflict in the law, the court certified the conflict and submitted the question to the Florida Supreme Court as one of great public importance. As such, we have not likely heard the end of this issue in Florida. We would suspect that the Florida Supreme Court will eventually settle the issue.

NOTE:  While the earlier Lantz decision (enforcing a minor agreement) involved only an injury, the Fields case (not enforcing the minor agreement) involved a death.  Perhaps the severity of the accident caused the court to more closely analyze the rights of the minor involved.  The court was also clear to point out that the boy’s mother was not aware of the decedent’s previous attempt to complete the jump that eventually caused his death, nor was she aware of the father’s decision to take him to the motorsports park.  Perhaps the fact that there may not have been agreement regarding the boy’s participation as between the parents impacted the court’s decision as well.  The current indicators seem to imply that if the Florida Supreme Court does settle this issue, there is a good chance that it will agree with the Fields court and rule that releases of negligence liability signed by parents or guardians on behalf of minor participants in hazardous recreational activities are generally against public policy and unenforceable.  With these developments, it is probably wise for recreational providers to revisit their minor agreements and focus them more on informed consent and assumption of the risk issues.

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