As a Florida lawyer who represents injured children, as well as a parent of a 13 year old daughter, I was very interested in the recent case of Claire’s Boutiques, Inc. v. Locastro. Alexis Locastro, a thirteen year old girl, had her ears pierced at a Claire’s Store in Florida. Prior to the piercing, her mother, Amy, was required to sign a release from liability form, waiving any claims that her daughter might have if she was injured due to the negligence of Claire’s or its employees in performing the ear piercing. In signing the form, she also promised to indemnify Claire’s and its employees for any claims she or her daughter might bring against them. In other words, if her daughter was injured and she or her daughter sued Claire’s and received a damages award, the agreement made Ms. Locastro responsible for reimbursing Claire’s for any amount Claire’s was ordered to pay to Ms. Locastro or her daughter, as well as for its attorney’s fees and costs.

Following her ear piercing, Alexis Locastro developed an infection that required extensive hospitalization and medical treatment, and left her with a permanent disfigured ear. Her mother then sued Claire’s on behalf of Alexis and herself. Part of Claire’s defense to the suit was to claim that the release that Ms. Locastro signed waived any right to sue that she or her daughter may have had.

According to the evidence at trial, the employees of Claire’s are shown a video to train them on how to pierce ears. But the training video did not provide any information regarding how to sterilize the equipment, including the surgical pen that is used to mark the area to be pierced.

All Claire’s employees have to pass a written test before being allowed to pierce customers’ ears. Claire’s was unable to prove that the employee who pierced Alexis Locastro’s ears, Erica Stokes, had received any training and there was no evidence of it in her employee file.

Claire’s retained an expert in pediatric infections, who testified that Ms. Locastro’s infection was not caused by the surgical pen, and must have been contracted several days after the piercing from another source.

The jury returned a verdict finding Claire’s 75% responsible, and awarding $69,740. Claire’s then turned around and filed a motion to require the mother to reimburse it pursuant to the indemnification agreement. The judge agreed with Claire’s that the mother was required to reimburse it, and entered a verdict against the mother for over $200,000 inclusive of defense costs, attorney’s fees and the judgment Claire’s owed to her daughter.

Claire’s and the Locastros both appealed. The mother argued that the agreement she signed, requiring her to reimburse or indemnify Claire’s, was against Florida’s public policy and should be voided. Fortunately for her as well as all other parents in Florida who may be asked to sign one of these ridiculous contracts, the Fourth District Court of Appeal agreed. Specifically, the court held that any indemnification agreement requiring a parent to indemnify a commercial activity provider for injuries their children suffer as a result of the business’ negligence is invalid.

In Florida, parents are immune from personal injury claims brought by their children. That rule concept is based on a policy of discouraging intra-family lawsuits, to promote harmonious family relationships while preserving the family’s economic resources. Moreover, if parents were at risk of being sued for their children’s injuries, it might prevent them from suing non-family members who are partly responsible for harming their children, for fear of being dragged into the case as a third party defendant.

Judge Levine wrote a very vocal dissent from the Fourth District Court’s majority decision to invalidate the indemnification agreement, saying the importance of upholding contract rights should prevail over public policies protecting the rights of an injured child. According to Florida Appellate Law expert Daniel Bushell, the question of whether these types of agreements are enforceable may now be addressed by the Supreme Court of Florida, if it chooses to hear the case, or by the legislature. The Florida Legislature recently enacted a new statute, §744.301(3), which allows parent to release a commercial activity provider for a child’s injuries under circumstances, if the injury is recognized as an inherent risk of participating in the activity.

For the time being, my recommendation, as a parent and Florida lawyer who sues businesses that hurt children, is not to sign any document that affects your children’s rights to receive compensation for injuries, medical expenses, or any other harm caused by a business without first consulting with your lawyer.

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