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Are Liability Waivers for Children Enforceable in Florida?

If you have children, then you know that nearly every activity – from soccer games to birthday parties – comes with a liability waiver. Not only are these forms full of legal jargon, but often parents are expected to read and sign them in a hurry. The reality for most parents is that they don’t have the time to read and interpret the legal lingo while their children wait impatiently, so they end up frantically signing a waiver form that they don’t understand.

While some minor injuries are just a part of a normal childhood, more serious injuries can occur due to the negligence of those in charge. So what happens if your child is injured? Is that waiver that you signed enforceable?

The answer to that question depends on several factors. First, was the activity operated by a commercial or noncommercial activity provider? Although the courts and legislature have not defined these terms, a commercial activity provider is likely one that is a for-profit business as opposed to a non-profit organization. Under Section 744.301, Florida Statutes, a commercial activity provider must include certain language in a waiver in order for it to be enforceable. If that language isn’t included in the waiver, it can’t be enforced. Additionally, such waivers are only enforceable if the injury was caused by an inherent risk in the activity itself, and not due to the negligence of the activity operators. Whether an injury was caused by an inherent risk or due to negligence can be a difficult question to answer in some cases because a negligent act of an operator may have contributed to the injury.

If the activity was operated by a noncommercial entity, the waiver form is not subject to the strict requirements of Section 744.301. However, the law is not settled as to what extent such waivers may be enforced. The Supreme Court of Florida and the legislature have both suggested that waivers for noncommercial activities are enforceable, but no court has addressed the extent to which a waiver can be enforced and whether the provider can waive claims in advance due to its own negligence.

The bottom line is that you should never assume the waiver you signed is enforceable. Talk to an attorney who can determine whether any rights were waived and to what extent you may be able to recover damages on behalf of your child and your family.

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