In Florida, parents are permitted to release a commercial activity provider for a child’s injuries occurring as a result of the inherent risk of the activity under certain circumstances. See § 744.301(3) Fla. Stat. (2010).1
Can parents execute a pre-injury release on behalf of a minor or the minor’s estate in a tort lawsuit arising from injuries suffered from the commercial activity provider’s own negligence?
No. A child still has a personal injury claim for:
- Past Lost Income
- Future lost income reduced to present value
- Medical expenses
- Replacement value of lost personal property (e.g. damage to your car, etc.)
- Funeral expenses
- Reimbursement for mileage to and from medical appointments
- Pain and suffering
- Mental anguish
- Loss of capacity for the enjoyment of life.
- Punitive Damages (in rare cases)
What is a “commercial activity provider”?
The Florida Statute does not define “commercial activity provider.” Just use your common sense.
What are some examples of “commercial activity providers”?
Just a few examples of commercial activity providers are:
Motor Sports Park where you ride all terrain vehicle (ATV) or other vehicles
In Florida, can a parent release the following from liability for their own negligence:
school-sponsored type activities?
volunteer run activities?
sponsors of a nonprofit sports activity?
Yes. In Florida, a natural guardian, on behalf of any of their minor children, can waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
The most typical natural guardian is the child’s parent. Community-run and school-sponsored type activities involve different policy considerations than those associated with commercial activities.
How child pre-injury releases play out in the real world
In Florida, some businesses will ask a parent to sign a waiver and release, in advance, of any claim for the minor child’s personal injury or death. I am going to use child injury claims against a Florida daycare as an example in this article.
Community centers and summer camps may also ask the same. The release may state that the daycare is released from liability for any negligence or liability.
This signed release will not release the Day care or camp from its negligence. Florida Statute 744.301(3)(a)(2).
This is because Florida Statute 744.301 only authorizes parents to waive and release, in advance, “inherent risks” of an activity.
A parent signs a document, in advance, so that a child (Jake) can attend summer camp at his grandparent’s country club in Miami Beach, Florida. The parent pays a fee for Jake to attend. The country club is not-for-profit.
The camp’s staff is comprised of employees who are paid. None are volunteers.
The document states:
RESPONSIBILITY: “Parent agrees to hold the Private Country Club, affiliates, manager, officers, employees, agents, members and guests free and harmless from all damages of any kind whatsoever, whether bodily injury or property damage, related to the use of the camp and all care associated therewith. The undersigned hereby releases Private Country Club, affiliates, manager, officers, employees, agents, members and guests from all claims of every nature including but not limited to bodily Injury.
PARENT/GUARDIAN: The undersigned is the parent or guardian of the child(ren) and agrees to the terms and conditions of the Registration Form and accepts all responsibility and assumes all liability for the participation of the child(ren) in the children’s program.”
(End of Document)
The camp does not have enough counselors to supervise the kids. Another child pushes Jake.
Does Jake have a personal injury claim against the country club from liability for its own negligence?
Maybe. It will depend on the answers to two questions:
1. Is the release language is effective to bar a negligence lawsuit (if a parent were the one attending the camp and making a claim)?
2. Is the country club is considered a “commercial activity provider”?
If the answer to question #1 is yes, then you go to #2. (Whether the release language is strong enough to prevent a negligence lawsuit) is outside the scope of this article.
If the answer to question #2 is yes (the country club is considered a “commercial activity provider”), then Jake has a personal injury claim for the camp’s negligence.
This is because, in Florida, an advance waiver or release will not bar the minor from having a negligence claim against a commercial activity provider.
If the country club is not a commercial activity provider, then Jake does not have a personal injury claim so long as the release language is effective to bar a negligence lawsuit.
Is the country club a “commercial activity provider”?
Jake’s parents will make the argument that it is not. The country club’s insurance adjuster (or attorney) may make the argument that it is a commercial activity provider.
Jake’s Parents’ Arguments
Jake’s parents should argue that the country club is a “commercial activity provider” because they paid the country club a fee for Jake to attend the camp. His parents should also argue that the camp’s employees are paid and are not volunteers.
Country Club’s Argument
The country club’s insurance adjuster will argue that the club’s not-for-profit status doesn’t make it a commercial activity provider. They will argue that the release is effective to prevent Jake’s negligence lawsuit.
Florida Statute 744.301(3) states that “natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or lawsuit against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child would have for personal injury, including death…from an inherent risk of the activity.
a. As used in this subsection, “The term ‘inherent risk’ means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD’S
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF ( name of released party or parties ) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM ( name of released party or parties ) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND ( name of released party or parties ) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.”
Example – Inherent Risk
A parent signs a document, in advance, so that a child (Jake) can attend summer camp at his grandparent’s country club in Miami Beach, Florida.
I will use the same language from the waiver and release in the above example involving Jake.
Jake is playing a contact sport at the summer camp. Contact sports include basketball, football, capture the flag, soccer, dodgeball and more.
Another camper tackles Jake. Jake breaks his upper leg bone (femur).
If the country club is considered a commercial activity provider, then Jake can sue the Country Club for negligence for personal injury resulting from an inherent risk in the contact sport.
Inherent risks in Jake’s case include, but are not limited to:
1. The failure by the Country Club to warn Jake’s parent or Jake of the possibility of being tackled and injured while playing soccer; and
2. The risk that another participant in the soccer game may act in a negligent or intentional manner and contribute to an injury to Jake.
If the country club is considered a “commercial activity provider”, then its release is not valid to prevent Jake from making a claim for failure to warn. The Country Club could argue that Jake or his parent knew of the inherent risk of getting injured while playing soccer.
What activities include the express assumption of risk?
Any contact sport includes the express assumption of risk.
What activities do not include the express assumption of risk?
Some activities will not prevent the injured child from all recovery due to the defense of assumption of risk because bodily contact with others is not inherent. They include:
- Diving into a shallow pool or lake.2
- A student may assume the risk of injury while participating in contact sports like cheerleading and football, but they do not assume the risk of negligent supervision of the student while doing these sports.
 The Florida Supreme Court case of Kirton v. Fields, 997 So.2d 349 (Fla.2008), involved the negligent activity of a commercial activity provider. The ruling of the majority opinion was narrow and directed at “commercial providers who wrongfully and negligently cause injury to a child but seek to be relieved of liability for their misconduct by securing a pre-activity release from the child’s parent.”
Nevertheless, language in the majority opinion caused the Legislature’s concern over the impact of the decision on parental rights, thus permitting a parent to release a commercial provider for inherent risks of an activity.
 Kendrick v. Ed’s Beach Service Inc., 577 So. 2d 936 (Fla. 1991).
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