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Hotel Lawyer: Hotel liability — Have you checked your parental release forms lately?

13 September 2009

Florida Supreme Court invalidates parental release. Hotel Lawyers suggest fast action.

A recent opinion out of Florida involving a fatal ATV accident to a 14 year old at an ATV track could have a major impact on the validity of parental release forms. In the case of Kirton v. Fields, the Florida Supreme Court ruled that a pre-injury release signed by a parent is not valid against a minor who is injured while participating in a “commercial activity.” While other courts have reached similar results, the Kirton case has attracted nationwide attention and may lead those other states that currently uphold parental release forms to change their law to follow Florida’s lead.


Hotel lawyer update on parental releases by Mark M. Rosenthal & Brian M. Yates

In Kirton, the Florida Supreme Court found that a pre-injury release executed by the parent of a 14 year-old boy who died in an ATV accident could not be used to protect the operator of a motor sports park from liability in a wrongful death suit filed by the boy’s mother. The court reached this conclusion even though the boy’s father stated that he fully understood the risks involved with the activity and knew what he was signing. In fact, the young rider himself had previously been involved in a serious accident at the same facility riding the same type of ATV. In spite of those factors, the court held that public policy considerations prohibited a parent from binding a minor child to a release of liability for negligence.

Only Applies to Commercial Activities

The Court took pains to stress that it was only “commercial activities” that could not validly use parental release forms; release forms signed in connection with school and other non-profit groups will still be considered valid. The rationale behind this distinction is that profit businesses can better afford the cost of insurance than nonprofits. There may be many instances, however, in which the line between a “commercial enterprise” and a non-profit may not be so easy to draw.

While there are a number of states such as California which appear to still recognize the validity of parental release forms, the Florida decision is not only the majority opinion, but also the clear trend of the recent cases. Thus, companies in every state would be well-advised to assume that any release they ask a minor’s parent to sign could later be found unenforceable.

There is no perfect solution to the liability issue created by cases like Kirton, but with some planning a company can at least minimize its potential exposure. First, it is still a good idea to have parents sign release forms. While such forms may be unenforceable against the minor, they may at least prevent the child’s parents from filing their own lawsuit.

Assumption of Risk Forms

Even more importantly, a teenager participating in a potentially hazardous recreational activity should sign a carefully tailored separate form; one that has a portion highlighted in bold entitled “Assumption of Risk.” This provision should state that the potential activity is hazardous (and spell out the hazards), that the participant has experience performing this activity and nonetheless assumes the risk of injury. A number of cases have held that a knowledgeable teenager may be held to have “assumed the risk” of injury when he or she signed a form acknowledging the risk.

Finally, owners of potentially hazardous recreational facilities used by minors should recognize the risk of an unavoidable lawsuit and plan for it. In addition to taking safety precautions to protect participants and eliminate any potential claims of negligence on its part, if a business allows minors to participate, it should make sure that it carries enough liability insurance to protect the business in the event of an accident in which a lawsuit results and a parental release is found to be invalid. Accidents and injuries are an unfortunate part of the sports and recreation business, regardless of whether minors are involved. Being aware of the current state of the law and making sure that your release forms are properly worded can help minimize the risk when such accidents happen.

Mark M. Rosenthal and Brian M. Yates are members of the Global Hospitality Group® and also the National Sports Law Group at Jeffer Mangels Butler & Marmaro LLP. They regularly help professional sports teams in player negotiations, stadium construction, team purchase and sales, and other transactional and litigation matters. Recently, they have been helping many property owners update their parental release forms in response to the liabilities presented by the Kirton case and its ilk.

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $60 billion of hotel transactions and have developed innovative solutions to unlock value from troubled hotel transactions. Who’s your hotel lawyer?

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Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,000 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or 310.201.3526.

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EXCERPT:

Florida Supreme Court invalidates parental release. Hotel Lawyers suggest fast action.

A recent opinion out of Florida involving a fatal ATV accident to a 14 year old at an ATV track could have a major impact on the validity of parental release forms. In the case of Kirton v. Fields, the Florida Supreme Court ruled that a pre-injury release signed by a parent is not valid against a minor who is injured while participating in a “commercial activity.” While other courts have reached similar results, the Kirton case has attracted nationwide attention and may lead those other states that currently uphold parental release forms to change their law to follow Florida’s lead.