Pre-injury execution and rights of a minor | Searcy Law

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Karen Terry

May a Parent Release the Rights of a Minor Through a Pre-Injury Release?

» Written by // December 17, 2009 //

The short answer in Florida is…No.

In Fields  v Kirton, 961 So. 2d 1127 (2007) the 4th District Court of Appeals certified a question to the Florida Supreme Court of great public importance:

Whether a parent may bind a minor’s estate by the pre-injury execution of a release.

The Florida Supreme Court acknowledged the history of decisions, both in Florida and outside Florida that have upheld the pre-injury release of a minor’s rights against a negligent party in the event of injury.

The Court considered the two compelling interests suggested by the case. Parents have an interest in raising their own children and the state has a compelling interest in protecting children. In this decision, the Court reasoned a careful balance between the interests of parents and the state.

The Court discusses the defendant’s arguments related to FS 744.301(2), allowing a parent to settle claims on behalf of their minor children. The Court, however, points out that this statute applies to situations in which a minor has a cause of action against another party; not a situation in which the parent is, pre-injury, absolving a party of any negligence. Further, FS 744.301 typically comes into play in situations where the courts ultimately must approve any settlement in excess of $15,000.

The Court reasoned that although parents have a fundamental right to make parenting decisions “concerning the care, custody, upbringing, and control of their children, the question of whether a parent should be allowed to waive a minor child’s future tort claims implicates wider public policy concerns.”

The ultimate foundation for the Court’s decision can be found in the following:

“Therefore, when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. Moreover, a “parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Fields, 961 So. 2d at 1129-30. For this reason, the state must assert its role under parens patriae to protect the interests of the minor children.”

In cases involving pre-injury releases executed by a parent on behalf of minors in commercial matters, the release is unenforceable and the tort action arising from the injuries and negligence is duly actionable.

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