State lawamkers Monday took a step toward allowing businesses to ask parents to sign a liability waiver before a child sets foot on a climbing wall, puts on a scuba tank or engages in other injury-prone activities.
The House Criminal and Civil Justice Policy Council voted unanimously in favor of the bill, which would give businesses that offer certain activities, such as scuba diving, rock climbing and waterskiing, added protection against injury claims, after a compromise from its sponsor, Rep. Mike Horner, R-Kissimmee.
HB 285 is Horner's second attempt to reinstate child-liability waivers after the Florida Supreme Court ruled they were unenforceable.
The court came to its 2008 ruling after a child died from injuries sustained in an ATV accident years earlier. The boy’s father had signed a waiver, but his mother had sued because of a lack of a flagman at the track.
Parents who sign such waivers are acting in the best interest of the business, and transferring the financial burden of injury onto themselves, the court ruled. Thus, the parent is endangering a child’s property or estate and not acting in the child’s best interest.
The court ruled that the decision whether to ask for waivers was ultimately a matter of public policy.
When Horner brought his bill to the council, he was confronted by an amendment, which added language that would make the bill mirror its Senate counterpart, SB 2440, which views waivers only as protection against “inherent risk.”
An inherent risk is defined as “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.”
Under the Senate's scheme, parents would only promise not to sue if a death was caused by the expected dangers of an activity -- being thrown by a horse, for example. Injury or death caused by the provider’s negligence, however, would not be covered and parents could still sue.
The amendment was tabled.
When it was brought back later in the meeting, Horner told the council he would consent to the amendment to move the bill along in the process, despite the fact he felt it was hostile. He said he looks forward to continuing to make improvements on the bill.
“I’m hoping that as we move the bill through the process, we can put in even more protection for parents and for children and for the state of Florida,” he said.
Mike Haggard, president of the Florida Justice Association, said the legislation as amended is acceptable. The FJA, which represents Florida trial attorneys, would try to stop any attempt to remove the amendment to the bill, he said.
Brett Lawicki, president of Aguille Rock Climbing Center in Longwood, said that his center has used waivers since 1997 and has continued to use them since the Supreme Court ruling. He said people incorrectly assume that rock climbing facilities and other businesses will act with abandon if a new waiver law passes.
“The waiver is just there as a line of defense,” said Lawicki, adding that he has never been sued for injury at his gym.
Bryan Malenius, spokesman for Walt Disney World Resort in Orlando, said his company supports the bill. The company contracts many of its activities, such as waterskiing, to dozens of small businesses, he said.
“All of them could be negatively impacted in the long run unless liability is returned to parental waivers,” he said.
Alex Tiegen can be reached at ateigen@sunshinestatenews.com or (561) 329-5389.