Hold-Harmless Waivers in Question Before Florida Supreme Court

You remember taking them home from school when you were a kid, and you've certainly stood by while your child fishes a crumpled one out of a cluttered backpack if you're a parent. Small, white slips of paper with a few bold terms, check boxes and lots of tiny print. That's right, I'm talking about waiver forms.

In Florida, the question of whether or not these waiver forms for sports, amusement or water parks are actually valid is now up for debate in the Florida Supreme Court.

Though the use of waiver forms is widespread, and their validity has been ruled on by courts in other states before. The inciting event that forced judicial decision on this matter was the death of a 14-year-old boy at an ATV park in Okeechobee, Florida.

In May 2003, Christopher Jones died after losing control of an ATV at the Thunder Cross Motor Sports Park. Total Injury has detailed the increase in ATV accidents before, especially among children under 16. Many parks where this kind of activity is legal do exist, and the presence of such a waiver agreement reinforces the danger that both children and adults face from these vehicles.

Yet, despite the fact that his father had signed a waiver that gave up his and his son's right to sue the park in case of injury, a Florida appellate court recently ruled that the father could not sign away his son's right to sue. The court ruled that parents are responsible for deciding what kinds of activities their children can participate in, but they cannot waive a child's right to make a personal injury claim without court approval.

Many of those involved in the decision are hoping that the Supreme Court's upcoming decision will help clarify how parks and parents can act to protect themselves in the future. Based on the appellate court ruling, the only way to make so-called "hold-harmless" agreements applicable now would be if a court appointed non-parental guardian to sign the waiver form before using the park. Of course, executing this plan would be virtually impossible.

The appellate decision conflicts with a ruling made in 1998, and in their recommendation to the higher court, requested that the Supreme Court treat the case with the utmost gravity because of its potential implications.

A recent New Jersey case extended the time allowed for minors to file personal injury claims. In New Jersey, children suffering from personal injuries now have the right to sue on their own once they turn 18 because the statute of limitations on personal injury claims only begins when children become adults.

In any case, the "hold harmless" agreements are usually waived if proper evidence can be offered to support gross negligence on the part of the park. Florida lawyers involved in this and similar cases have agreed that the new court decision may only be confusing the issue, and that a Supreme Court decision could make everyone's understanding of this tragic and complicated issue much clearer.