Florida legislators should approve a proposal that would restore legal waivers for kids' activities.

OrlandoSentinel.com
Let parents decide on kids' activities
Florida legislators should approve a proposal that would restore legal waivers for kids' activities.
March 8, 2010

Both the U.S. and Florida constitutions give parents a fundamental right to make choices in raising their children. A Florida Supreme Court majority took a bite out of that right 15 months ago when it ruled parents couldn't waive their children's civil-lawsuit rights before they participate in potentially dangerous activities.

Parents routinely choose whether to expose their kids to risk, whether it's letting them play contact sports, swim at the beach or drive at 16. But the court's decision on waivers could take away that choice from parents for a wide range of experiences offered by tourism and recreation businesses — not only theme-park attractions, but horseback rides, rock-wall climbing, animal encounters and other inherently risky activities.

Some of those businesses might turn away kids rather than face frivolous lawsuits or unaffordable insurance. Others geared toward kids might close.

Some state lawmakers, including Republican Rep. Mike Horner of Kissimmee, want to restore the option for parents to sign waivers for their children. This is a reasonable idea, despite self-serving arguments to the contrary from the state trial lawyers' lobby.

The trial lobby has warned that restoring waivers would let businesses escape the consequences of harming or killing children, leave the cost of caring for injured kids to families or taxpayers, and remove the financial incentive for businesses to be safety conscious. We'd be against the idea, too, if these warnings held water.

In fact, waivers permitted under a bill from Mr. Horner wouldn't get businesses off the hook for intentional misconduct — knowingly doing something that would likely cause injury to a child. The waivers wouldn't excuse gross negligence — a conscious disregard for child safety. Businesses that ignore safety would remain at considerable legal and financial risk.

The legal environment the trial lobby is warning about existed in Florida until the December 2008 court ruling. Why wasn't the state notorious for its lax attitude toward child safety when waivers were allowed?

The trial lobby also argues there is no sign that the court ruling has harmed businesses. But anecdotal evidence is starting to emerge.

Some small dive shops won't offer certification for junior scuba divers. Orlando's Gatorland lost business for an attraction that lets visitors work with alligators when it began turning away younger guests, and it has put on hold a new, $1 million attraction that would require participants to sign waivers.

Mr. Horner believes a big lawsuit award stemming from a waiver found invalid could lead insurers to jack up their rates and deal a broader blow to businesses.

Former Justice Charles Wells, who dissented from the state Supreme Court's 2008 ruling, cited another reason for the Legislature to act. The majority's ruling declared that it was aimed at commercial entities, but Mr. Wells argued that community groups, including sports teams, might be considered commercial if they charge for their activities.

"How can these groups carry on their activities that are so needed by youth if the groups face exposure to large damage claims either by paying defense costs or damages?" he wrote. Good question.

Lawmakers should restore the waivers, and let parents decide whether the fun or educational value of an activity for their children outweighs the risk.

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