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This week my daughter Sara Rose’s elite prep school has taken her 9th-grade class out to the Florida Everglades for something called “Outward Bound.” It is purported to be a “life-changing experience” where the sometime sheltered and often coddled members of her class get to experience nature and solitude in a new and profound way. I wanted desperately for her to go; I am not sure how enthusiastic Sara Rose was.

In order for her to attend this event, she–along with presumably every other member of her class–was asked to have her parents or guardian sign a release and waiver for her to attend the event. In other words, they had to enter into a contract not to sue the school (or anyone else, for that matter) in the event of an accident or worse.

As a children’s lawyer in Florida, I have spent nearly 20 years trying to help kids who have been hurt in daycares, theme parks, public schools, city parks, swimming pools, summer camps, on cruise ships, and by dangerous medications. I have represented injured children who have been inadequately supervised, left to play on dangerous playground equipment, bullied, or involved in car accidents.

SHOULD I SIGN A WAIVER FOR MY CHILD?

When Sara Rose presented me with the release, my first instinct as a parent was to sign it and hope for the best. But my years of being a lawyer caused me to pause, put my glasses on, and read it. I was astounded. The language in the release gave away any right or claim that she or her parents would have in the event of an accident resulting from negligence or carelessness–or even gross negligence or extreme carelessness.

Many of you reading this may say, ”So what?” If she gets hurt, then you cannot sue. So what? Aren’t there too many lawsuits and too many lawyers already? Isn’t this the reason people hate lawyers? Stop being such a lawyer!

But it is more than that; by insulating a school–including my own daughter’s school–from liability, or by insulating any other person or entity from liability, you also legally relieve them of responsibility and accountability. It is much like taking the speed limit signs down on I-95 and saying we trust that you will drive safely, but if you want, you can drive as fast as you like–swerve and drift a little– and as long as you don’t try ramming into a school bus intentionally, you will not get a speeding ticket, accumulate points on your license, or have to pay for any of the damage your actions cause.

For me, as a lawyer who handles children’s injury cases, to sign this release and waiver would be ludicrous. Much like the tailor whose pants are too small, or the organic farmer eating at McDonald’s, I could not stand the thought of betraying what I know by giving up my daughter’s legal rights in the event she needed them.

What is Florida’s Law on Releases and Waivers?

Florida Statute §744.301(3) is the law in Florida on releases for children. It grants the following rights:

… natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.

What are the Inherent Risks of an Activity?

Inherent risks are defined under Florida’s law as follows:

…“inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:

  1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
  2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.

In other words, the risk can be one that the parents are unaware of as there is no obligation for the school or Outward Bound service to warn the parents who are signing the waiver of any risks they are agreeing to accept.

The law requires that a release be in a typeface at least in 5-point font. I would show you 5-point font but my MacBook Air goes down only to 8. This is five-point font; can you read it? The statute provides the following language:

NOTICE TO THE MINOR CHILD’S
NATURAL GUARDIAN

READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF ( name of released party or parties ) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM ( name of released party or parties ) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND ( name of released party or parties ) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.

What if the People Who Signed the Waiver Do Not Understand What They Signed?

If the parents sign this document, it is presumed that they understand it and that the release is valid. I have been to enough parent-teacher coffees at my daughter’s school–as well as helped the parents of children around the world who have signed releases for every entity from Disney World to Royal Caribbean–to know that parents often have little to no understanding of what they have signed.

One may conclude that if you can read or speak English, you should be able to understand what the content of the release purports to mean. I argue that it contains such specific language that most lawyers would not understand it, unless they specialize in the personal injury in Florida.

The only way to invalidate a release like this would be to prove that the injury or death was the result of something other than “an inherent risk” of the activity. I cannot even imagine what that would be as I would think the inherent risks for spending a week in the Everglades are endless.

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