The Florida ADR Law blog has an interesting post about a recent decision by the Florida Supreme Court, which held that liability waivers that parents sign for their children to participate in commercial activities are not enforceable. The court reasoned that the right to recover for injuries is personal to children, and that parents do not have the authority to waive that right before a child sustains injuries. The court cited a long of list of other states that follow the same rule.
The court's ruling is sure to be controversial on several fronts.
First, the court made a policy decision that traditionally has been reserved for the legislative branch. Whatever the wisdom of the court's ultimate decision, there little doubt that it balanced policy issues while conducting none of the fact-finding that legislatures generally do. This lack is illustrated by the reasoning it gave for a second controversial part of its decision, which was a vaguely-worded and ambiguous possible exception for school and non-commercial activities. The court quoted an Ohio court's holding that community and volunteer groups cannot afford to obtain liability insurance, and that such groups, if faced with the threat of litigation, would simply decide that the activities are not worth the risk.
That statement is utter nonsense, and shows a striking lack of information about commercial and volunteer activities. Most businesses operate on small margins, and are not much more profitable than volunteer groups. This fact is particularly true for youth-serving organizations, where the line between non-profit and for-profit groups is a fine one. Parents can pay only so much for services, and the balance sheets for so-called "commercial" organizations rarely are more healthy than those of non-profit groups.
The court's reason for singling out commercial organizations is based on suppositions, not facts. Perhaps that is why the court hedged in footnote 2, saying that its decision "should not be read as limiting our reasoning only to pre-injury cases involving commercial activity; however, any discussion on pre-injury releases in noncommercial activities would be dicta." That explanation certainly cleared up any confusion.
Even after this decision, youth-serving organizations in Florida should not abandon releases. Those waivers serve several purposes, such as warning about the dangers inherent in some activities. Those other purposes still survive, and make it better to have parents sign a release than not. This decision simply means that organizations (at least commercial groups) cannot count on those waivers to make a claim go away completely.
