Generally, an exculpatory clause is valid and enforceable when it clearly and unequivocally expresses a party’s intention to be relieved from liability, even from their own gross negligence.1 However, for an exculpatory clause to be effective and operate to absolve a defendant from liability arising out of his own negligent acts, the clause must clearly state that it releases a party from liability for his own negligence.2
“Exculpatory clauses will release even a party’s own negligence “to the extent that the intention to be released from liability was made clear and unequivocal in the contract; wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.”3
A parent does not generally have the authority to enter into an exculpatory agreement on behalf of their child under Florida law, with some exceptions.4 However, recent decisions allowing the enforcement of arbitration clauses signed by parents on behalf of their children have caused a recent string of decisions allowing a parent to sign away a minor child’s right to sue with a pre-injury release under all circumstances.5 The issue is currently before the Florida Supreme Court. The Court recently heard oral arguments on June 11, 2008. The cases currently pending before the Florida Supreme Court, and the reasoning behind the various arguments, are addressed in this article.
In Fields v. Kirton6, the Fourth District Court citing 59 Am.Jur2DParent and Child § 40, 183 and Romish v. Albo7, indicated that 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 a child without court approval. The court further stated that “if the legislature wished to grant a parent the authority to bind a minor child’s estate by signing a pre-injury release, they could have said so.”
Nevertheless, the cases holding that a parent does not have a right to decide what is best for their own child are not grounded on sound public policy arguments. The most often used analogy of the plaintiff’s bar in backing this argument revolves around a parent’s inability to resolve a minor child’s claim without court approval. However, this argument does not take into account the everyday decisions that a parent makes for their child on a day-in and day-out basis. In fact, the state should have absolutely no place in telling a parent what is best for the child, unless a court of law has determined that the parent is unfit.
An analysis of this issue begins with the Fourteenth Amendment which gives parent’s a fundamental right to make decisions relating to their minor children. Additionally, under Article I, Section 23 of the Florida Constitution, parents have a right to make decisions about their child’s welfare without interference from third parties. However, this right has been limited by the Florida legislature to require the court’s approval prior to a parent settling claims on behalf of a minor child.8 In Von Eiff v. Azicri,9 the court found that “neither the legislature nor the courts may properly intervene in parental decision-making.” However, those against pre-injury releases have argued that a parent should not be permitted to “sign away” a child’s personal injury claim.
Florida courts have recognized various exceptions in which releases signed by a parent on behalf of a minor child have been held enforceable. Typically, such exceptions are found with regards to non-commercial entities which require releases prior to participation, including not-for-profits, community-based organizations and schools. Florida courts have consistently held that a waiver executed by a parent on behalf of a minor child is supported by public policy when it relates to obtaining medical care, insurance, or participation in a school-related activity.10
In Gonzalez v. City of Coral Gables,11 a minor child was injured while participating in a school program that trained students as fire rescue personnel. As a condition to participation, the parents of the participants were required to sign releases. The mother of the injured child brought suit against the defendant as a result of the injuries suffered by her daughter, and the defendant successfully moved for summary judgment based upon the signed release. The Third District Court of Appeal concluded that the training program “fell within the category of commonplace child-oriented community or school-supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.”12
The public policy arguments in favor of this general exception revolve around the need to allow these releases to make it easier for community-based entities to recruit employees and volunteers and limit the financial burden of expensive lawsuits and overbearing insurance premiums. If the courts did not uphold these exculpatory clauses, then the community would lose very important programs for the enrichment of the community as a whole.
Moreover, in Krathen v. School Board of Monroe County,13 the court upheld a pre-injury release, signed by the mother of the minor child prior to her daughter’s participation in a cheerleading program at her high school. The court found the release to be clear and unambiguous with regards to its intent to release the School Board from liability for “any injury or claim resulting from… athletic participation.”14 The court addressed whether a parent can bind their child to a waiver of liability. In addressing this issue, the court found its prior decision in Gonzalez v. City of Coral Gables to be controlling. The court addressed the issue of commercial and not-for-profit activities, specifically citing the Supreme Court’s rejection of a distinction between same.15 Further, the court found that “it is within a parent’s authority to make this decision on behalf of his or her child.”16
Based upon a recent Florida Supreme Court decision involving a parent’s ability to sign away a child’s right to a jury trial, a new line of cases have arisen which also allow a parent to decide what is best for their own child by signing a pre-injury exculpatory clause.17
The Supreme Court of Florida recently reversed the Fourth District Court of Appeal and upheld an arbitration provision in a pre-injury release finding it enforceable.18 In the Shea case, the mother of the minor child executed a pre-injury release which contained a provision for arbitration. While on the safari, the minor child was tragically killed. His father brought suit on behalf of the minor child’s estate and under the Wrongful Death Act. However, defendant, Global Travel moved to compel arbitration citing the arbitration provision in the pre-injury release. The trial court upheld the arbitration provision. However, on appeal, the Fourth District Court of Appeal reversed the trial court’s ruling.
The Shea court reasoned that parental authority over decisions involving their minor children derives from the liberty interest contained in the United States and Florida Constitutions.19 Furthermore, the legislature or the courts may properly intervene in parental decision making absent significant harm to the child threatened by or resulting from those decisions. The Court refused to make value judgments regarding the parents’ decision to take a minor child on a safari, as the decision may have been made to expand the horizons of the child in a manner that only a parent should be able to make.
Recently, the Fifth District Court of Appeal has expanded the Supreme Court’s reasoning in Shea finding that parent may execute a contract containing an exculpatory clause, signed by a parent on behalf of her child, in favor of a commercial enterprise, and the same would be enforceable to defeat the child’s action to recover for personal injuries sustained by the child as a result of the enterprise’s negligence.20
The Fifth District Court of Appeal in Lantz v. Iron Horse Saloon, Inc, also upheld a pre-injury release finding it valid and enforceable even though the release was in favor of a commercial enterprise. The court addressed a pre-injury release which released the premises owner “from all… causes of action, suits… damages… claims and demands whatsoever, in law or in equity, which [parent] ever had… or may have, against [owner]” which was executed by the parent allowing her son to ride a “pocket bike.” The court found the release to be clear and unequivocal. However, the court never addressed the public policy concerns associated with a parent’s right to sign the contract.
In the Applegate case, the parents of a minor child signed an exculpatory clause releasing the Defendant, Cable Water Ski, L.C. from liability. The Plaintiffs later brought suit against the Defendant, Cable Water Ski, L.C., for injuries which the child suffered while attending the Defendant’s camp. On appeal, the Fifth District Court of Appeal addressed whether a contract containing an exculpatory clause was enforceable, signed by a parent on behalf of their minor child, in favor of a commercial enterprise. Accordingly, the court acknowledged a distinction between public policy relative to commercial enterprises, who, according to the court are able to insure against the risk of loss and activities for children sponsored by not-for-profit, community-based organizations and entities. The court then ruled that the exculpatory contract was not enforceable as it was signed in favor of a commercial entity. However, the court then certified the question as one of great public importance for the Supreme Court to decide.
We believe in keeping with the precedent found in the Shea case, the Supreme Court will uphold a parent’s ability to sign a pre-injury release on behalf of a minor child, thereby waiving their right to pursue a claim as a parent should have the right to determine what is best for their own child without any interference from the state.
To the extent that you have a claim involving an exculpatory clause, we would recommend addressing the following steps to determine whether the same will be enforceable under Florida law:
Closely analyze the terms of the exculpatory clause to determine whether it is clear and unambiguous;
Ensure that the pre-injury release was signed by a person with authority; and
Determine the type of entity which the pre-injury release seeks to release from liability. Specifically, whether the entity is a commercial enterprise or a not-for-profit, community-based organization.
1 Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2nd DCA 2005).
2 Goyings v. Jack and Ruth Eckerds Foundation, 403 So.2d 1144 (Fla. 2nd DCA 1981).
3 Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998).
4 In re Complaint of Royal Caribbean Cruises, 403 F.Supp.2d 1168, 1173 (S.D.Fla.2005).
5 Applegate v. Cable Water Ski, L.C. 974 So.2d 1112, 1115 (Fla. 5th DCA 2008); Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998).
6 961 So.2d 1127 (Fla. 4th DCA 2007).
7 291 So.2d 24, 25 (Fla. 3d DCA 1974),
8 Fla. Stat. § 744.387.
9 720 So.2d 510, 516 (Fla. 1998).
10 In re Complaint of Royal Caribbean Cruises, 403 F.Supp.2d 1168, 1173 (S.D.Fla.2005).
11 Gonzalez v. City of Coral Gables, 871 So.2d 1067 (Fla. 3d DCA 2004)
12 Id.
13 Krathen v. School Board of Monroe County, 972 So.2d 887 (Fla. 3d DCA 2007)
14 Id. at 888.
15 Global Travel Marketing, Inc. v. Shea, 908 So.2d 392 404 (Fla. 2005).
16 Krathen, at 890.
17 Globla Travel Marketing, Inc. v. Shea 908 So.2d 392 (Fla. 2005)
18 Global Travel Marketing, Inc. v. Shea, 908 So.2d 392, (Fla. 2005).
19 Id.
20 Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998); Applegate v. Cable Water Ski, L.C. 974 So.2d 1112, 1115 (Fla. 5th DCA 2008).
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