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| Wooten Kimbrough Damaso & Dennis, P.A.

For many years businesses have required parents to sign forms before a child can participate in an activity. Usually the form-called a pre-injury release–is filled with legalese and the parents will not know what it is they signed until the child is hurt or dies. Then they realize that the form purports to release the business from all liability for death or injury to the child even when the injury results from the negligent or reckless conduct of the business. Further, the release works to free the insurance company for the business from any liability even though a premium was paid for liability insurance to protect and compensate the injured child in this very situation. Finally, the release is used to protect the business even when only one parent signs the release, and even when signed without the knowledge of or over the objection of the other parent.

Recently the Florida Supreme Court was asked to decide if a pre-injury release is valid to allow a business to escape all liability for its alleged negligent conduct that resulted in the death of a minor. The Court held that pre-injury releases are not valid as to minors involved in commercial activities. The Court astutely concluded that there is "injustice" to deny a child a right to legal accountability when the child is injured by the negligence of a commercial business just because one parent signed all rights away. It noted that pre-injury releases take away all incentive for businesses to use safety precautions. After all if a company can get out of responsibility by just having a parent sign a piece of paper that is a lot cheaper than training its employees or making sure the product or activity is safe to begin with. The Court carefully noted that the decision did not apply to non-commercial interests such as church or community groups, or school events.

Florida businesses, including the big theme parks, are lobbying hard right now to get the Florida Legislature to overrule the Supreme Court. They want a law that says one parent can sign away all rights of a child to recover from commercial for profit businesses even when the business is negligent or reckless and that negligence directly causes death or injury to a child. Florida legislators must decide if it makes sense to give a business a free ride to hurt our children and make a profit to boot.

It makes better sense to adopt a law that would that would make a pre-injury release valid as to injuries caused by the "inherent risk" of an activity. But if the child is injured from the negligent or reckless conduct of the business there would be no protection. An example is swimming with dolphins. If a dolphin knocks over a child, a business should not be responsible for that, however, if they drop a hot electrical wire into the tank and the child gets electrocuted then they would be liable. This is the compromise suggested by the Florida Justice Association. The theme parks are fighting this language. They and other businesses want absolute liability for all negligent and reckless conduct even when it directly injures or kills a child. They do not seem to consider that it will hurt Florida tourism if a child tourist is hurt or killed but, because of a signed paper full of legal mumbo jumbo, the business can hurt or kill a child with absolutely no recourse whatsoever. If the theme parks get their way, this will be a lesson soon learned by parents of residents and tourists alike. Is that how we really want Florida to treat our children and the children of our tourists that we invite to the State?

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