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| Wooten Kimbrough Damaso & Dennis, P.A.

Incredibly the Florida Legislature is proceeding with a bill to allow negligent corporations to escape all liability for injuries or death that they cause to children even from negligence. At issue are waivers the certain corporations make parents sign before they let a child engage in an activity. Under current laws the waivers are valid only for injuries caused by inherent risks in an activity. The version of the law proposed in the Florida House would permit waivers to cover not only inherent risks but would also provide a shield for liability for negligent acts. The Florida Senate version would shield for liability for inherent risks but not for negligence.

The alleged point of a waiver is to protect businesses from liability for injuries caused by the inherent risk of the activities. For activities such as horseback riding a waiver makes sense as some injuries will happen even when an activity is performed with properly trained and equipped personnel. If, for example, a horse gets spooked on a trail ride and a rider falls off there is no problem in protecting the stable from liability if they had proper equipment. That is the law in Florida now and it works well. Some businesses, however, are not satisfied with that and instead want a law that gives them blanket protection from liability for actual negligence. They want a law that would shield them from liability for all injuries even ones they could have prevented merely by using reasonable care.

The current law and the law proposed by the Senate that allows waivers for inherent risks makes sense. Under this law a parent and child can evaluate a known risk of the normal activity and, therefore, they cannot sue for suffering an injury caused by the exact danger that made the activity risky in the first place. But a waiver that excuses negligence will allow businesses to avoid all safety measures and standards of care and yet still be free from liability. Children only assume risks that are obvious in the activity, but they should not have to assume risks caused by negligence.

Lets explore a water ski injury as an example. If a parent signs a waiver and allows their child to water ski and the child is hurt from falling on the ski during normal operation there is no liability. The waiver is valid under the current law and the Senate bill. Under the proposed law the waiver goes much further. For instance, if a company hires a pedophile and never bothers with a background check and the child is sexually molested and killed when out on the boat the company gets off completely with no liability at all. If the boat driver is drinking or using drugs on the job and hurts a child, even if the company knows about the drug and alcohol use but does nothing about it, the company also has no liability under the proposed House version of the law.

The corporations argue that the parents do not have to sign the waivers, but in reality, these are "take it or leave it" waivers. Either you sign it and participate in the activity, or you don’t; it leaves no room for bargaining. Further there is no requirement that the corporation provide any information to parents about the safety of the activity before they must sign the waiver. Thus a company could conceal all injuries and deaths from the parents and hide the real facts about the safety of the activity when getting the waiver signed. Many tourists to Florida are from out of state or out of the country and it is highly unlikely they will understand that the waiver lets a company be completely careless with the safety of their child, lets them hide any knowledge of other injuries from the activity and gives them blanket protection from liability for all injuries and deaths even when caused by negligence . Most parents would interpret the form to be only a standardized form absolving the company from liability only for inherent risks of the activity.

Companies argue that the waivers protect them from incurring substantial legal fees. That is true but what they conveniently ignore is that they are just pushing the costs onto society (we the taxpayers or private health insurance). We want laws that make a company pay the cost for hurting an innocent child when they are negligent for ignoring all reasonable safety standards. Sadly, unscrupulous companies can and will use the law to cut corners because there is absolutely no reason not to. They can avoid all liability for just the cost of a piece of paper and ink that makes up a waiver, which is much cheaper than providing safe equipment or trained employees. Further, the law not only shields the companies from liability it also shields their insurance company from owing anything. As we all know, there are no free rides. Someone must pay for the medical care caused by the injury and the costs will be spread to the rest of us, not the at fault negligent party. Instead of the negligent company or its liability insurer owing the money it will be the government through medicaid or private health insurance or the hospital that pays . A law that provides for a negligent party to pay for medical bills caused by its negligence provides an incentive for safety and an incentive to get insurance instead of leaving the rest of us to pay for the damage they cause.

Under the House version of the proposed bill, however, it will end up with the taxpayers, private health insurance or hospitals footing the bills for negligent conduct. The House bill will give a cost advantage to unsafe companies who will not buy insurance or who will not pay for safety measures. Why would a lawmaker in the State of Florida want a law that gives carte blanche to ignore all safety measures and yet escape accountability for dangerous conduct? Why would they want a law that shifts the cost of ignoring safety from a negligent party to private health insurance or to the State and our hospitals? Obviously certain lawmakers are getting promises of contributions for campaigns from the lobbyists and are, shamefully, putting the money above the safety of our kids. If any of you lawmakers who support the bill are listening please use this forum to tell us why you would want such a dangerous law (other than helping you get campaign money) and how it will make for a better world for our children.

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