I just stumbled across this editorial regarding a recent 4th DCA ruling regarding minor release form signed by parent at an ATV park. Obviously, this attorney is our friend but perhaps somebody out there can shed more light on this ruling. I don't have time at the moment.
Court or Legislature must specify parental release limits
Click-2-Listen
Saturday, September 01, 2007
While I understand the legal reasoning behind the 4th District Court of Appeals' decision to allow the estate of a minor child to sue an ATV park and not be subject to the release signed by the parent, the public policy issues raised by the ruling will be far-reaching ("Florida high court may take up children's rights to sue," Aug. 25).
First, while the parent has waived his right to sue for the parent's own loss, the parent is likely to be the personal representative and beneficiary of the child's estate when the estate sues the park. Therefore, the parental release is meaningless. Logic also would presume that the park then would be able to sue the parent under theories of indemnification and/or contribution for allowing the minor child to engage in an activity that he or she was not properly trained to perform.
Logic also would presume that the same theories applicable to the ATV park would apply to skateboard parks, horse trails, BMX tracks, football and baseball leagues, and summer day-camp programs. All of these activities require the parents to sign a release prior to their child's participation. Under the court's ruling, however, the child or its estate would not be limited by that release. Strict application of the court's reasoning without legislative limitation could signal the end of any activity that now requires a parental release for the minor child to participate.
I do not believe that it was the intent of society or the law to create such a result. The Legislature easily could determine that a child's participation in activities serves a great public purpose and determine that a parent's decision to allow a child to participate in an activity and execute a release that limits the provider's liability is a worthwhile trade-off for the benefits such activities provide. Providers would remain liable for gross negligence.
The idea that ATV parks' owners could price the cost of lawsuits into their user fees is absurd. The only way that many of these activities can be offered is by limiting the provider's liability. No one is going to pay $100 an hour to ride an ATV in a field. Instead, either ATV use will cease to exist, or riders will use other areas that are not organized, supervised or maintained.
If the Florida Supreme Court is unwilling or unable to reverse the 4th DCA's decision, the Legislature should decide whether a parent of a minor child can waive that child's rights with respect to engaging in activities which may have some chance of resulting in physical harm and allow the parent to determine whether the chance of harm is outweighed by the activities' benefit. Or it simply should outlaw all such activities in the interest of child safety.
PETER J. MALECKI
Jupiter
Editor's note: Peter J. Malecki is a lawyer.
http://www.palmbeachpost.com/search/content/opinion/epaper/2007/09/01/letterfile_0901.html
