As scuba divers, we have become accustomed to signing liability waivers anytime we want to take a dive class, join a group dive trip, board a dive charter vessel, or participate in any other type of recreational scuba diving activity.  In fact, liability waivers are so common, few divers even question them.  To most, it is common sense that adults who wish to participate in adventurous activities must take responsibility for what happens in those pursuits.  However, the question is not so clear when minors are involved.

It is customary to have a parent or guardian sign waiver documents on behalf of their minor children when the minor plans to participate in dive training and dive travel.  In most states, scuba and adventure sports providers cannot ask the minor to sign; they are not of sufficient age to engage in contracts.  All that is available to the operator is a signature from a well informed parent or guardian.  However, this is an area of great concern for operators, because the legal status of such signatures is not well tested in most states.   The courts in the State of Florida appear to have ruled on exactly this issue.  The following is taken from a December 12, 2008 article in the HeraldTribune.com.

TALLAHASSEE - Parents cannot waive liability on behalf of their children by signing releases before the youngsters participate in motor sports and other hazardous activities, the Florida Supreme Court ruled Thursday.

The 4-1 ruling in the death of a 14-year-old boy while riding an all-terrain vehicle could have broad implications for businesses that offer such activities as go-cart and motocross racing, bungee jumping, horseback riding, parasailing and scuba diving.

“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 decision cleared the way for a lawsuit against the owners and manager of Thunder Cross Motor Sports Park in Okeechobee County, where Christopher Jones died after attempting a jump. He lost control and was ejected from the vehicle. It then landed on top of him. He got up and began walking away, but then collapsed and died.

A trial judge cited a waiver signed by Christopher’s father in dismissing the lawsuit. An appellate court disagreed and reinstated the suit. The high court approved that decision.

“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 Brad Rockenbach, a lawyer for Christopher’s estate. “You do it because kids want to go.”

Rockenbach said the ruling also should serve as an incentive for operators to make their activities safer.

Whether the decision also affects noncommercial endeavors such as community or school-based activities may require further litigation.

Anstead wrote that he wanted “to emphasize that our holding is narrowly directed at those commercial operators who wrongfully and negligently cause injury.”

Chief Justice Peggy Quince, though, wrote in a footnote to the main opinion that it “should not be read as limiting our reasoning only to … commercial activity.”

“The majority opinion creates many questions and provides few answers,” Justice Charles Wells wrote in dissent.

Wells agreed it is a good idea to limit parental pre-injury releases. But he wrote that such limits should be imposed by the Legislature, not the courts. He added that it is “fundamentally unfair now to declare a new public policy and then apply it to the defendants in this case.”

But the majority concluded it is more unfair for an activity provider to escape liability and shift the cost of treating and caring for an injured child to the 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,” Quince wrote. “Business owners owe their patrons a duty of reasonable care.”

The Supreme Court’s two newest justices, Charles Canady and Ricky Polston, did not participate in the case.

At Dive Sports, we have always recognized that this is uncharted territory in the State of Alabama.  We follow our provider rules and those of our training agency with regard to liability waivers.  However, we have never been under the assumption that liability waivers, signed by a parent on behalf of a minor,  would withstand a legal challenge if the MINOR chooses to take legal action as a result of an accident.  We will follow further developments on this Florida court ruling and similar rulings in other states.  This is an issue that could substantially affect the participation of children in adventure sports.

Phil Ellis

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