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Thursday, April 30, 2009

House Bill 363 - Liability Waivers and Parental Authority

Some of you may have seen this making the rounds. But it didn't seem clear to me, just what the actual issue was when the consulting and lobby group, Home Education Foundation, sent out an “Immediate Alert Info” email about House Bill 363, so I sought some clarification.

The bill, endorsed by Walt Disney World but applicable to all family activity providers, expands the waivers and personal injury release forms that parents sign before doing things like renting theme park boats, going on certain rides, or field trips or participating in certain activities, to cover negligence on behalf of the activity provider. That means if you sign a waiver before going on a ride, for instance, and the ride breaks and your child gets hurt or worse, even though it's the provider's fault (and not yours or your child's for horsing around or using the equipment improperly), the provider is not at fault.

A competing version of the bill in the Senate (SB 886) does not cover provider negligence. The Legislature has only two weeks to resolve the issue before its 2009 session ends May 1. HEFs position is that this bill affect home educators directly because we participate in a variety of activities that require waivers. HEF believes, reasonably enough if seems, that those providing such activities shouldn’t be immune from responsibility or liabilty if a parent signs a waiver.

From the Home Education Foundation:

Homeschoolers have a well-rounded curricular experience which often includes field trips and extracurricular learning opportunities. In recent months, the Florida Supreme Court and the Florida Legislature have moved to better define which activities may not only put students at risk but also whether or not those providing such activities should be immune from responsibility or liability should a parent sign a waiver.

Some see this as an assault on parents' rights to make decisions regarding whether they believe an activity puts their student at "risk". Others feel this is a necessary step in order to better define, for activity providers, what guidelines should be in place to ensure a safe experience for all involved. Without this important legislation, providers may not carry insurance should negligence occur, and all costs of injury or death would be borne by the parents.

…The amendment being put forward by Rep. Llorente better defines what is currently proposed in the Florida House and will conform the House bill to the Senate bill. This issue will not be easily settled, but homeschoolers have an opportunity to weigh on this issue by asking House members to include Rep. Llorente’s amendment (# 344949) in HB 363

The bill - without the amendment - will allow the commercial activity providers cover for any negligence on their part. A parent would have to sign a waiver, which under the current version of HB 363, would waive the inherent danger as well as any negligence on the part of the activity provider.

The Llorente amendment would not allow the vendor to be immune for negligence.

The language of the Llorente amendment is:

(b) In addition to the authority granted in paragraph (a), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against an activity provider and its employees for the inherent risks involved in any activity; however, any waiver or release by a natural guardian on behalf of any of his or her minor children does not grant civil immunity to any person or entity whose negligence, gross negligence, or intentional conduct causes injury to a minor child sustained in the course of an activity. As used in this section, the term “negligence” means doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances. Waivers and releases under this subsection are disfavored and must be strictly construed against a party claiming to be relieved of liability due to such a waiver and release. Such waivers and releases are enforceable only where and to the extent that the intention to be relieved of liability was made clear and unequivocal in the waiver and release and the wording of the waiver and release was so clear and understandable that an ordinary and knowledgeable person would know what he or she would be contracting away. Nothing in this paragraph shall be construed to relieve an activity provider or its employees or agents from liability for any claim based on a violation of state or federal law.

(c) Notwithstanding the authority granted in paragraph (b), natural guardians are authorized, on behalf of any of their minor children, to sign waivers or releases in accordance with chapter 773, regarding equine, activities and s. 549.09, 33 regarding motor sport activities.

You can comment to the committee members listed at or to your congressional representatives.

You can learn more this bill and see other views at these links:

Bill info : Last Event: Added to Unfinished Business Calendar on Friday, April 24, 2009

Panel Approves Florida Child Liability Law

Florida Attractions Association

Florida Arbitration Law:

Parental Authority Bill Threatened by Trial Lawyers

Dilemma: How to let kids take risks, be safe from negligence,0,7999089.story

Liability Waivers: Trial Lawyers v. Theme Parks, Florida Supreme Court vs. Legislature

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