What is the Effect of a Waiver if Your Child is Injured?
These days, if your child is engaged in an activity, you have probably been asked to sign a waiver of some sort. From the local soccer league to going to the neighborhood bouncy house, waivers are omnipresent. Parents sign them without thinking about it. For most parents, it is not a matter of not caring about what the waiver says but more a case of being a necessary evil if you want your child to participate in the activities of childhood. What’s more, if you ask 10 different parents what the effect of a waiver is, chances are you will receive 10 different answers, none of which are exactly correct. What does actually happen if your child is injured at an event or a facility after you have signed off on one of these waivers?
Waivers of Liability
Nearly everyone has seen the typical waiver. There are as many waivers as there are businesses that use them. Some are written by the business while many more are either bought or downloaded as a form to be customized by the specific business. However, they all purport the same thing: you cannot sue the business if the participant is injured during the course of the activity. Many waivers even say that you will not be able to sue in the case of negligent behavior on the part of the business.
Kirton v. Fieldsand Subsequent Developments
Prior to 2008, in general Florida law and legal precedence held that a waiver of liability executed on behalf of a minor child by a parent was enforceable. In 2008, this changed when the Florida Supreme Court decided the case of Kirton v. Fields. In this case, the Court ruled that a pre-injury waiver signed by a parent on behalf of a minor child was unenforceable. The Florida legislature disagreed with this development and passed a law that, or so they thought, clarified the situation in 2010. The new statute purported to make a waiver of liability valid when executed on behalf of a minor and insulated the business from liability when the injury resulted from “an inherent risk in the activity.” Soon thereafter, though, an appeals court in South Florida decided another case involving a waiver and indemnification clause (requiring the parent to indemnify, or pay back, the business if they are sued) and held that the waiver was void as it was against public policy.
Waiver Law Today
It seems that the legal waters regarding waivers in Florida are still muddied. What seems clear is that waivers are not enforceable in cases involving negligent or intentional actions post-Kirton. While many felt this area of law was fairly settled, the developments in the last few years have changed all of that. It has now become rather complex and is certainly driven by the facts of the specific case.
If your child has been injured after signing a waiver, you need an experienced personal injury attorney to help you decide the proper course of action. Each accident and each waiver must be examined and analyzed in detail to determine what the actual liability is. The experienced professionals at Fasig & Brooks know the law and follow the developments every day. Give us a call if your child has been injured in the Tallahassee area today at either (850) 222-3232 to set up your free consultation. You and your child deserve the best representation available to protect your rights, even if you think you may have waived them.