In a previous blog, I wrote that the 2010 Florida Legislature was attempting to pass a law purposely crafted to reverse or limit the ruling in Kirton v. Fields, 997 So.2d 349 (Fla., 2008), the Florida Supreme Court case which held that pre-injury releases executed by parents on behalf of minors were unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity. Through the recent passage of CS for SB 2440, it appears that the legislature may have succeeded in limiting Kirton.
The bill authorizes natural guardians of minors to waive, in advance, claims for injuries or death arising from risks inherent in commercial motorsport activities such as motorcross and go-cart parks – the Kirton case involved a minor who died from an accident at a motorcross park. Kirton banned such waivers.
Significantly, and thanks to the tireless lobbying efforts of the Florida Justice Association, the bill does not shield the owners and operators of commercial motorsport facilities and sanctioned events from their own negligence.
The essential elements of the bill are:
- Waivers for minors relating to inherent risks associated with commercial motorsport activities are authorized;
- The execution of a valid waiver creates the presumption that the accident was caused by an inherent risk; and
- Clear and convincing evidence rather than just a preponderance of evidence must be demonstrated to overcome the presumption that the accident was caused by an inherent risk.
Thankfully, the bill appears to be limited in its scope and applicability. Nevertheless, it will have a meaningful impact in those cases in which it applies. For example, it is likely that the Kirby decision would have gone the other way had this law been in effect at the time of that tragic accident.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.