TALLAHASSEE, Florida (12 Dec 2008) — The Florida Supreme court ruled yesterday that parents cannot waive liability on behalf of their children by signing releases for scuba diving and other hazardous activities. "Florida's children and parents need not worry, after today's decision, that careless commercial operators may be immunized from their carelessness by the presence of an exculpatory clause in a ticket for admission," Justice Harry Lee Anstead wrote in a concurring opinion. The 4-1 ruling enables a lawsuit to go forward against the owners of a Florida motor sports park where a 14-year-old boy died after an accident involving one of the park's ATV vehicles. Citing a liability waiver that the boy's father had signed, a trial judge previously dismissed the lawsuit but an appellate court disagreed and reinstated it and the Florida Supreme Court upheld the appellate court decision. The Supreme Court ruling was based on the majority opinion that it is unfair for activity providers to avoid liability and shift the burden of treatment and medical care to the child's parents or the public. "Therefore, when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider," Chief Justice Peggy Quince wrote. "Business owners owe their patrons a duty of reasonable care." Brad Rockenbach, a lawyer who represented the 14-year-old boy's estate, hailed the ruling as an incentive for activity providers such as dive shop owners to make their programs safer. "Up to now, the activity providers were able to use children's desire to participate as a way to force parents to give them immunity," said Rockenbach. "You do it because kids want to go." Scuba diving and liability release waivers While the most important rule of scuba diving is not holding one's breath, the most important rule of operating a scuba diving business is not allowing customers to scuba dive unless they sign a liability waiver release. But increasingly, courts are rejecting the dive industry waiver scheme that essentially shifts legal responsibility for dive operator negligence to the diving public. In April 2004, CDNN reported that a New Jersey appellate court ruled 4-1 that the relatives of Eugene J. Pietroluongo, who died during a scuba diving course conducted by Regency Diving, had the right to sue for wrongful death even though the victim signed a liability release waiver. | | Good news for kids injured while scuba diving, bad news for dive operators who wrongfully and negligently cause injury. The global scuba diving industry is founded on a waiver scheme that obligates the diving public to assume legal responsibility not only for their own conduct but also for dive operator negligence. "In adopting the Wrongful Death Act, our Legislature declared that a just society has both a moral and economic responsibility to ensure that those who are found civilly liable for the death of a person are required to compensate the heirs of that person for the pecuniary losses resulting from his or her death," wrote Appellate Division Judge Jose L. Fuentes. "From these legal principles we conclude that decedent did not have the legal authority to bargain away his heirs' statutory rights to institute a wrongful death action in exchange for the privilege of having defendants provide him with scuba diving instructions. To hold otherwise would directly undermine the legislative policy established by the Wrongful Death Act." In July 2007, CDNN reported that the California Supreme Court ruled 6-1 that recreation providers in the state may be held liable for gross negligence regardless of the wording on liability waivers signed by participants or their parents. Despite claims by California's recreation and sports industry that facilitating the victim's right to sue would be the death knell for scuba diving operators and other activity providers, Chief Justice Ronald M. George said there was no evidence that states with even more liberal rights to sue have lost recreational opportunities. |
