O-U-C-H . . . . What’s That Spell?

by

Krathen v. School Board of Monroe County (Florida)
(High School Cheerleader Injured During Practice; Waiver and Release Signed by Parent Enforced, Negligence Claims Barred)

A high school student injured during a cheerleading practice brought a negligence action against the school board. She alleged that the school board was negligent in the following respects: (1) by failing to adequately supervise the cheerleading practice; (2) by conducting the practice without adequate preparation; (3) by using inexperienced or untrained personnel to supervise the practice; (4) by failing to place protective mats on the floor so as to cushion the impact; (5) by conducting the practice without the coach being present; and (6) by failing to abide by or follow appropriate school board policies and/or procedures relating to extracurricular activities. The defendant school board filed a motion for summary judgment based upon the “Consent and Release of Liability Certificate” signed by the cheerleader and her parents prior to her participation. The trial court granted the motion, and the cheerleader appealed.

On appeal, the court first concluded that the signed certificate clearly and unambiguously indicated the intent to release the school board from liability for “any injury or claim resulting from . . . athletic participation.” The court explained that under Florida law, the language was sufficient to insulate the school board from liability for the negligence claims. The court found that any claim resulting from athletic participation includes the claim for negligence such as was alleged by the cheerleader.

After addressing the sufficiency of the document itself, the court then turned to the issue of a parent’s right to sign a waiver and release and express assumption of the risk agreement on behalf of his or her minor child in the context of a hazardous recreational activity. Just a few weeks earlier, the Florida Court of Appeals (in the case of Fields v. Kirton [addressed in a previous AMWT&C Email Legal Alert]) held that these types of agreements, signed by parents on behalf of minors, were not enforceable as contrary to public policy. The Krathen court specifically acknowledged the Fields decisions, and recognized that the Fields court had certified the question to the Florida Supreme Court for a resolution of a conflict in the law. Nonetheless, the court found its previous 2004 decision in Gonzalez v. City of Coral Gables (enforcing a waiver and release agreement signed by a parent on behalf of a minor participating in a fire rescue personnel training course for school credit to bar negligence liability) to be controlling.

The court noted that the cheerleader’s parents clearly thought that participation in cheerleading was beneficial for their daughter, and they were, thus, willing to “release and hold harmless” the school board from “any claim or injury” their daughter suffered as a result of her participation. The court stated that because it was within a parent’s authority to make this type of decision on behalf of his or her child, the cheerleader and her parent were bound by the signed certificate. Plaintiff’s negligence-based claims were barred, and the court noted that she was unable to present any evidence demonstrating either “gross negligence” or an intentional tort.

Therefore, the ruling in favor of the school district was affirmed. In light of the continuing conflict in Florida law regarding the enforcement of waiver and release agreements signed by parents on behalf of their minor children participating in hazardous recreational activities, the issue seems ripe for resolution by the Florida Supreme Court.

NOTE: This ruling, coming on the heels of the contradictory Florida opinion in Fields v. Kirton, makes the issue of minor participant waiver and release agreements seemingly impossible for the Florida Supreme Court to ignore. Over the past couple of decades, Florida and California were the leaders in a distinct minority of jurisdictions that enforced minor agreements. The viability of minor agreements was questioned, although not directly addressed, by the California Supreme Court in the recent ruling of City of Santa Barbara v Superior Court. Now, minor agreements also face a significant challenge n Florida.

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