An interesting case is headed for the Florida Supreme Court

[JeepDiver 0]

Florida Supreme Court to hear ATV case that could challenge parental rights next month

The death of a 14-year-old boy in an ATV accident five years ago could end up changing the way people who offer sometimes risky activities, like motorcross and watersports, to children, do business.

The Florida Supreme Court announced it would hear arguments next month in a case brought by the estate of Christopher Jones against the owners and manager of Thunder Cross Motor Sports Park in Okeechobee. The case raises the question of whether parents have the ability under Florida law to sign release forms that give away the right of their children to sue for damages.

"It's going to affect really anything ... any type of activity in which minors participate which requires releases to be signed," said Richard Lee Barrett, who represents the former park manager and other motorcross parks across the state. "It's a cutting edge issue that's going to have broader application throughout the state of Florida."

The basic facts of the case aren't in dispute. Bobby Jones took his 14-year-old son Christopher to the now-defunct Thunder Cross Motor Sports Park on May 10, 2003 to ride ATVs and signed a release form on behalf of the boy waiving liability and the right to sue. At the time, Jones was divorced from his wife Bette and had custody of both their sons.

Christopher died after he fell off his ATV during a jump and the vehicle landed on top of him, according to court papers. Bette Jones, who was unaware the boys were riding ATVs, later filed a wrongful death suit claiming the park owners and manager were negligent, a case that was dismissed before trial because her ex-husband had signed the release form.

The 4th District Court of Appeal reversed that decision in August, ruling there was nothing in state law that allows a parent to waive all legal rights on behalf of a minor. The court noted its decision conflicted with another appeals court decision, which is an issue the Florida Supreme Court will now take up.

Lawrence Huttman, one of the attorneys representing the boy's mother, said that while Florida law allows adults to waive their own rights to sue, it doesn't let parents do so for children. Pre-release forms shift the burden of preventing risk on to parents, who would be hard pressed to know before signing a form whether the operator of a motorcross park or other activity is operating safely.

"A pre-injury release actually encourages activity providers to cut costs at the expense of the safety of the children, perhaps even ignoring safety entirely because it removes their obligation of reasonable care toward children. Only the state has the authority to reduce the level of safety applicable to children," the attorneys representing the mother write in their brief.

Courts are required to approve settlement amounts above $15,000 involving children, a recognition that the state sometimes steps in to protect the rights of minors, Huttman said.

Bobby Jones has signed an affidavit acknowledging he fully understood what he was doing when signed the release form and attorneys for the motorcross park argue parents like Jones should have the ability to waive their children's right to sue.

"The Florida Legislature favors the ability of parents to make decisions on behalf of their children in numerous and wide-ranging activities. Under Florida law, several acts that would otherwise be criminal are expressly allowed with the permission of a parent," writes attorney William Wallace, who represents the park's owners.

The law varies from state to state, with some states allowing these types of releases and others not.

Briefs in support of the sports park have been filed by the National Association of Underwater Instructors and the American Motorcyclist Association. Lindsey Brock, who wrote the underwater instructors brief, said he also represents Orlando Watersports, a company that has had its case put on hold while this appeal is pending because it involves a similar claim.

Because insurance companies often require these release forms, some businesses worry that if they aren't able to use the forms, they won't be able to get insurance and would have to pay the direct costs of any accidents that occur. That could put some out of business, he said.

In court briefs, Huttman and others argue the dangers to businesses are overstated, in part because if they are operating in a safe manner then they won't be vulnerable to negligence lawsuits. The boy's mother, Bette Jones, said this week she continues to pursue the case because she wants to raise more awareness about the potential danger of ATVs.

She's hopeful the Florida Supreme Court decision will allow her to actually move forward with a trial.

"It's been probably the roughest five years of my life," Jones said. "I think about it every day. I live it every day."

TIMELINE OF THE CASE

May 10, 2003: Christopher Jones, 14, dies at Thunder Cross Motor Sports Park in Okeechobee

Jan. 4, 2005: The estate of Jones files a wrongful death lawsuit on his behalf

Dec. 15, 2005: The circuit court grants a motion for summary judgment because the boy's father signed a release form

Aug. 8, 2007: The 4th District Court of Appeal reverses the decision, saying nothing in Florida law allows a parent to waive those legal rights for a child

June 11, 2008: The Florida Supreme Court will hear oral arguments in the case.

[CSpenceFLY 1]

These people keep it up and kids won't be able to pick their noses ontil they are 18. When will we as a society stand up and say enough is enough. This crap has gotten out of hand.

[chriswelker 0]

There is case law on the books that supports the suit. Mommy and Daddy can't sign Junior's life away.

Chris

[CSpenceFLY 1]

Do you think this is a good thing? Kids are getting larger and larger. Pretty soon they will have no other choice then sit on the sofa and play video games. Well until the fucking laywers take that away because the game are too violent, and they are.

[Orange1 0]

Quote

In court briefs, Huttman and others argue the dangers to businesses are overstated, in part because if they are operating in a safe manner then they won't be vulnerable to negligence lawsuits. The boy's mother, Bette Jones, said this week she continues to pursue the case because she wants to raise more awareness about the potential danger of ATVs.

This is the bit I find troublesome. We all know that you can be as careful as you can and sometimes, shit happens. Then people call their lawyers...in other words, just because a company is not being negligent, doesn't mean it won't find itself on the receiving end of a negligence lawsuit. And even if it is found not liable at the end of it, the cost of defending that suit could still be enough to put them out of business.

Wanting to raise awareness of the potential danger of ATVs, and thinking the company are negligent, is also not the same thing at all.

Skydiving: wasting fossil fuels just for fun.

[shropshire 0]

Shame about the youngster... But, best we don't let kids go climbing or skiing or even swimming in the sea. Hell let's wrap the young uns up in cotton wool and keep them in doors, 'till they're 18.,

(.)Y(.)
Chivalry is not dead; it only sleeps for want of work to do. - Jerome K Jerome

[tombuch 0]

Quote

Pre-release forms shift the burden of preventing risk on to parents, who would be hard pressed to know before signing a form whether the operator of a motorcross park or other activity is operating safely.

"A pre-injury release actually encourages activity providers to cut costs at the expense of the safety of the children, perhaps even ignoring safety entirely because it removes their obligation of reasonable care toward children."

I'm interested in this argument, because it would also apply to adults signing away their rights to sue.

In my experience with skydiving, I agree that it is impossible for a novice to determine if the provider is operating safely. Absent a known standard an untrained person can not evaluate the risk, and thus can not offer informed consent.

In the case of parents, one parent may be perfectly OK with a child doing something risky, but the other may oppose the activity, as seem to be the case here. One parent should not have the right to make that decision on behalf of the minor and the other parent. In this case, however, it appears that one parent did have legal custody, and that may provide a different level of rights over the minor than two parents who share joint custody.

It's an interesting case.

Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

[flypunk 0]

Yes, society has allowed it self to sue for the smallest and most absurd things; however this does not mean that all kids will be prevented from doing anything outdoors or even risky and get fat.

It might just revert to what it originally started as and shift the responsibility to the parents themselves i.e. you want your kid to use and ATV, you'll have to buy one and assume all responsiblity since this type of precedent will probably shut down rentals for kidsl.

Once your kid gets injured on your time, your land, and your ATV there is not much you can do but deal with it, like it used to be.

Yeah I'm bored and can't sleep but I still think that you shouldn't be able to sign your kids rights away.

...

[Baksteen 84]

It's interesting that "the law" states that minors aren't capable of making an informed decision on their own (therefore requiring parental consent), but that when it all goes to shit people start to claim that parents shouldn't have the right to waive their kids 'right to sue'.
If the kids 'can't' decide for themselves and the parents aren't 'allowed' to do it for them, then who is going to make the decision? I'm not just talking about thrill rides, but also about general everyday stuff for which parental consent is necessary, like insurance or whatever. Insurance co0mpanies can screw you over too. Or is that okay because they don't ask you to sign a waiver in which you void your right to sue? Exactly what is the issue here?


That being said, I think that if an investigation concludes gross negligence on the part of the provider of the thrill a waiver should be void, be the victim adult or minor.

Even in skydiving there is a difference between calculated risks and recklessness.
Sure, as a skydiver I signed the waiver, but there is a certain amount of trust involved there. For one thing, I *assume* the plane is airworthy when I get on it (barring Murphy's law). The simple fact that I signed a waiver does NOT absolve the DZ from all responsibility for ensuring that their operation is conducted within the limits of the law.
I know this is going to earn me a few comments fromm the Knee Jerk Clan along the lines of if I "don't want to run risks I should get the fuck out of the sport" or something, but I say that if a DZ is legit, they don't have anything to fear from me.

"That formation-stuff in freefall is just fun and games but with an open parachute it's starting to sound like, you know, an extreme sport."
~mom

[iluvtofly 0]

Quote

Once your kid gets injured on your time, your land, and your ATV there is not much you can do but deal with it, like it used to be.

I doubt that. Because once the kid gets injured the parents will sue the makers of the ATV for making a product that is not safe and then they'll sue the city for the land they were riding on being too bumpy and unsafe.

[pmw515 0]

If a person has to sign a waiver absolving a dropzone, water park, or other entity of liability, and a person is allowed to sue anyway, what was the purpose of the waiver?

Are people now so feeble minded that they think "I will sign a waiver, but if I get hurt, I will sue. I will let the government dictate what I can and cannot do because I've been injured?"

Along the same logic, if parents signs a waiver for his or her child, the net. Should accept the fact that his or her child may be injured, and they should not sue. That, in my opinion, is personal responsibility on the part of the parent.

[itllclear 1]

Quote

If a person has to sign a waiver absolving a dropzone, water park, or other entity of liability, and a person is allowed to sue anyway, what was the purpose of the waiver?

To get this back on track, it is not the parent who is the plaintiff in the suit; it is the estate of the deceased child. The underage deceased did not have the legal capacity to sign a waiver, so the service provider handed the papers to the parent.

As a general rule, no one (not even a parent) can sign away another party's right to sue. In some cases, the parents or another party can petition the court to be appointed the power of attorney for a specific instance.

The courts have made a general exception in cases in which it would be harmful for the child if no waiver was signed, i.e., the child needed immediate medical attention and the medical provider required an agreement to arbitrate rather than file a suit in court.

The question here is not whether a waiver is binding. The question is whether the parent can sign the waiver for the child.

Even if both parents did not want the suit to be filed, another party (even a county social services department) looking out for the child's welfare could petition a court to be appointed as guardian of the child and have the suit filed.

That's something for DZO's to think about when letting their underage children jump.

BSBD

Harry L.

"Harry, why did you land all the way out there? Nobody else landed out there."

"Your statement answered your question."

[yamtx73 0]

Quote

To get this back on track, it is not the parent who is the plaintiff in the suit; it is the estate of the deceased child. The underage deceased did not have the legal capacity to sign a waiver, so the service provider handed the papers to the parent.

As a general rule, no one (not even a parent) can sign away another party's right to sue. In some cases, the parents or another party can petition the court to be appointed the power of attorney for a specific instance.

The courts have made a general exception in cases in which it would be harmful for the child if no waiver was signed, i.e., the child needed immediate medical attention and the medical provider required an agreement to arbitrate rather than file a suit in court.

The question here is not whether a waiver is binding. The question is whether the parent can sign the waiver for the child.

Even if both parents did not want the suit to be filed, another party (even a county social services department) looking out for the child's welfare could petition a court to be appointed as guardian of the child and have the suit filed.

That's something for DZO's to think about when letting their underage children jump.

BSBD

Harry L.

The ability to waive a child's right to sue varies from state to state, currently there are 10 states that permit parents to waive those rights; Florida being one of them (the others are California, Connecticut, Georgia, North Dakota, Wisconsin, Massachusetts, and Ohio). However it does not waive the right to sue due to negligence. If the atv park, drop zone, scuba school, riding stable or what ever else is requiring the waiver is negligent the parent/guardian can file suit under Florida law.

In this case the plaintiff is the child's mother who was the custodial parent and wasn't aware of her child's activities. With the father's signature on the waiver she's going to have to show the atv park was negligent. It also brings up the question of whether the non-custodial parent has the legal right to sign such a waiver.

The only naturals in this sport shit thru feathers...

[itllclear 1]

Quote

In this case the plaintiff is the child's mother

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2007
JORDAN FIELDS, as Personal Representative of the Estate of CHRISTOPHER JONES,

http://floridaarbitrationlaw.com/cases/fields_v_thunder_motor_cross.pdf

Final statement of the ruling:
"Accordingly, we also certify the following question to the supreme court as one of great public importance.
WHETHER A PARENT MAY BIND A MINOR’S ESTATE BY THE PRE-INJURY EXECUTION OF A RELEASE."

"Harry, why did you land all the way out there? Nobody else landed out there."

"Your statement answered your question."

[yamtx73 0]

From the same document:

Quote

The issue does not involve restricting or precluding parents from deciding what activities may be appropriate for their minor children’s participation. Instead, this court’s analysis is predicated upon the effect of the release insulating the provider of the activity from liability for negligence inflicted upon the minor.

The only naturals in this sport shit thru feathers...

[happythoughts 0]

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Aug. 8, 2007: The 4th District Court of Appeal reverses the decision, saying nothing in Florida law allows a parent to waive those legal rights for a child

In Florida, DZ owners are well aware of this.

There have been cases where a minor child of a dz employee has been taken on a tandem, but it is very rare.

Other than that, I can't think of one dz who would take a minor on a tandem.

[BIGUN 1,050]

I had an interesting situation where the father brought in his 16 y/o daughter to make a S/L jump. We're going thru the paper work and he tells me, "Yeah, we're going to do this and not tell her Mom cause she wouldn't allow it. I ask if he's the legal guardian and if he has his divorce papers awarding him custody. Nope, Mom's got custody. Sorry... have a good day. He was all torqued at me... But, I wasn't willing to place the DZ in jeopardy. Heck, even if she twigged her ankle, who knows what legal actions would have ensued.

Nobody has time to listen; because they're desperately chasing the need of being heard.

[itllclear 1]

Quote

even if she twigged her ankle, who knows what legal actions would have ensued.

Even if BOTH parents signed you could still have a problem.

As a DZO, it's your call as to whether the benefit of letting the minor jump is worth the potential problems.

"Harry, why did you land all the way out there? Nobody else landed out there."

"Your statement answered your question."

[BIGUN 1,050]

True 'dat.
I checked with an attorney in Oklahoma and even if both parents sign and they are not of the age of legal majority... parents cannot waive a child's right to sue. Not to mention Child Protective Services. Therefore, no less than 18 y/o anymore for me.

Nobody has time to listen; because they're desperately chasing the need of being heard.

[LloydDobbler 2]

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In this case the plaintiff is the child's mother who was the custodial parent and wasn't aware of her child's activities. With the father's signature on the waiver she's going to have to show the atv park was negligent. It also brings up the question of whether the non-custodial parent has the legal right to sign such a waiver.

Just to clarify, the original post makes it sound as if the father is the custodial parent. So the question is still whether the custodial parent has a right to sign such a waiver...as well as a nice side helping of whether the non-custodial parent is able to call those shots, too.

Or...something like that.

I'm gonna go read some John Locke and be angry.

Signatures are the new black.

[popsjumper 2]

Quote

...As a DZO business owner, it's your call as to whether the benefit of letting the minor jump do anything is worth the potential problems.

Fall off MacDonalds playslides? Sued!

Be careful on what you ask for...you just may get it.

My reality and yours are quite different.
I think we're all Bozos on this bus.
Falcon5232, SCS8170, SCSA353, POPS9398, DS239

[goobersnuftda 0]

Remember that Florida is also the state where a DZ allowed an infant baby to do a tandem jump.

The tandem master was the father and mommy dearest was the pilot of the aircraft. Did that make it OK to have their 2 year old baby as a tandem passenger (and proud enough to have the story and pictures published in SKYDIVING magazine)?

Most issues are pushed to the limit then the point of the courts must step in. It's too bad that those abuse the situation because when finally a net is cast to rein them in, not only do the 100% crazy people get reeled in but the 5% crazies as well :)

[eUrNiCc 0]

I wonder if this lawsuit will change the way Skyventure Orlando looks at the waiver process. I've been there many times and it seems like a very good chunk of their business is with the sub-18 crowd.

Egad, A BASE life defiles a bad age.