Signing Waivers for your Children

June 8, 2012

Signing Waivers for your Children
In the recent case of Locastro v Claire’s Boutiques, Inc., a thirteen year old girl, Alexis Locastro, had her ears pierced at a Claire's Store in Florida. Prior to the piercing, her mother was required to sign a release from liability form, waiving any claims that her daughter might have if she was injured due to the negligence of Claire's or its employees in performing the ear piercing. In signing the form, she also promised to indemnify Claire's for any claims she or her daughter might bring against them. In other words, if her daughter was injured and she or her daughter sued Claire's and received a damages award, the agreement made Mrs. Locastro responsible for reimbursing Claire's for any amount Claire's was ordered to pay to Mrs. Locastro or her daughter, as well as for its attorney's fees and costs.

Following her ear piercing, Alexis Locastro developed an infection that required extensive hospitalization and medical treatment, and left her with a permanent disfigured ear. Her mother then sued Claire's on behalf of Alexis and herself. Part of Claire's defense to the suit was to claim that the release that Mrs. Locastro signed waived any right to sue that she or her daughter may have had.

The jury returned a verdict in favor of Alexis Locastro in the amount of $69,740. Claire's then turned around and filed a motion to require the mother to reimburse it pursuant to the indemnification agreement. The judge agreed with Claire's and entered a verdict against the mother for over $200,000 for defense costs, attorney's fees and the judgment Claire's owed to her daughter.

Both parties appealed. The mother argued that the agreement she signed was against Florida's public policy and should be voided. Fortunately the Fourth District Court of Appeal in West Palm Beach agreed. Specifically, the court held that any indemnification agreement requiring a parent to indemnify a commercial activity provider for injuries their children suffer as a result of the business' negligence is invalid.

The question of whether these types of agreements are enforceable may be determined by the Supreme Court of Florida, if it chooses to hear the case. However, in the meantime, the Florida Legislature recently enacted a new law, which allows parents to release a commercial activity provider for a child's injuries, if the injury is recognized as an inherent risk of participating in the activity.

For the time being, my recommendation, as a parent and Florida lawyer who sues businesses that hurt children, is not to sign any document that waives your children's rights to receive compensation for injuries, medical expenses, or any other harm caused by a business.