When a fit parent's judgment isn't good enough

Gabrielle D'Alemberte

Attorney
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Christopher Jones hit the ground at Thunder Cross Motor Sports Park
near Okeechobee just before his all-terrain vehicle landed on top of
him. The 14-year-old died moments later from his injuries.

Six years later, the incident has turned into much more than a family
tragedy. The Florida Supreme Court ruled in December that
Christopher’s father, Bobby, didn’t have the right to sign a release
and waiver of liability to allow his son to operate the ATV that day.

The court ruled in deciding the case of Kirton v. Fields that “a
parent does not have the authority to execute a pre-injury release on
behalf of a minor child when the release involves participation in a
commercial activity.” A main point in the ruling was that by signing
the release the sports park was absolved of responsibility.

Parents act on behalf of their children in nearly every way possible
deciding what food to feed them, what kind of education they receive
and often their religious values. Now a precedent has been set in
Florida that a parent doesn’t have the right to sign a waiver to allow
their child to participate in commercial activities such as shooting
sports, rodeos, farm tours and all other activities where minor
releases are required for participation.

This year, however, Rep. Mike Horner introduced House Bill 363
designed to overturn the Supreme Court’s decision in Kirton v. Fields.
Though the legislation died on the Unfinished Business Calendar on May
2, it brings up a few key issues, including that of liability. And if
parents can no longer sign off a waiver, how much will it jeopardize
their children’s ability to participate in certain activities. Will
businesses simply close their operations to minors? They’re
interesting question to pose.

In its ruling, the court made the point that “It cannot be presumed
that a parent who has decided to voluntarily risk a minor child’s
physical wellbeing is acting in the child’s best interest.”
It continued: “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.”
(http://www.floridasupremecourt.org/decisions/2008/sc07-1739.pdf)

But according to a House of Representatives staff analysis, the
Supreme Court’s rationale “focuses exclusively on risks associated
with engaging in such activities, and does not acknowledge any
parental or legislative role in weighing the risks of engaging in an
activity against the possible greater benefits to the child for
engaging in such activities notwithstanding the estimated level of
risk.” (http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=h0363b.CJCP.doc&DocumentType=Analysis&BillNumber=0363&Session=2009)

The analysis correctly argues that the Supreme Court’s decision was
made without a constitutional or statutory source of authority, and
that the ruling thus was very subjective.

So what are the limits of a fit parent's judgment? The debate likely
won’t end with the recent decision. According to Rep. Horner’s bill
and a dissenting opinion in the Kirton case by Justice Charles Wells,
there is support for the Legislature to end up the final voice in the
matter. At least that way, the state’s current and future parents can
have a say in their role as guardians of their children.