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       Florida Senate - 2010                                    SB 2440
       
       
       
       By Senator Bennett
       
       
       
       
       21-01774A-10                                          20102440__
    1  
    2                        A bill to be entitled                      
    3         An act relating to liability releases; amending s.
    4         549.09, F.S.; redefining the term “nonspectators” to
    5         include a minor on whose behalf a natural guardian has
    6         signed a motorsport liability release; providing that
    7         a motorsport liability release signed by a natural
    8         guardian on behalf of a minor is valid; amending s.
    9         744.301, F.S.; authorizing natural guardians to waive,
   10         in advance, claims for injuries arising from risks
   11         inherent in an activity; defining the term “inherent
   12         risk”; providing a statement that must be included in
   13         the waiver; creating a rebuttable presumption that a
   14         waiver is valid; providing the requirements and
   15         standard of evidence for overcoming the presumption;
   16         providing an effective date.
   17  
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Paragraph (g) of subsection (1) and subsection
   21  (3) of section 549.09, Florida Statutes, are amended to read:
   22         549.09 Motorsport nonspectator liability release.—
   23         (1) As used in this section:
   24         (g) “Nonspectators” means event participants who have
   25  signed a motorsport liability release or, if a minor, whose
   26  natural guardian has signed a motorsport liability release.
   27         (3) A motorsport liability release may be signed by more
   28  than one person if so long as the release form appears on each
   29  page, or side of a page, which is signed.
   30         (a) A motorsport liability release must shall be printed in
   31  8 point type or larger.
   32         (b)A motorsport liability release signed by a natural
   33  guardian on behalf of a minor is valid to the extent provided in
   34  s. 744.301.
   35         Section 2. Present subsection (3) of section 744.301,
   36  Florida Statutes, is redesignated as subsection (4) and amended,
   37  and a new subsection (3) is added to that section, to read:
   38         744.301 Natural guardians.—
   39         (3)In addition to the authority granted in subsection (2),
   40  natural guardians are authorized, on behalf of any of their
   41  minor children, to waive and release, in advance, any claim or
   42  cause of action against an activity provider, or its owners,
   43  affiliates, employees, or agents, which would accrue to a minor
   44  child for personal injury, including death, and property damage
   45  resulting from an inherent risk in the activity.
   46         (a)As used in this subsection, the term “inherent risk”
   47  means those dangers or conditions, known or unknown, which are
   48  characteristic of, intrinsic to, or an integral part of the
   49  activity and which are not eliminated even if the activity
   50  provider acts with due care in a reasonably prudent manner. The
   51  term includes, but is not limited to:
   52         1. The failure by the activity provider to warn the natural
   53  guardian or minor child of an inherent risk; and
   54         2. The risk that the minor child or another participant in
   55  the activity may act in a negligent or intentional manner and
   56  contribute to the injury or death of the minor child. A
   57  participant does not include the activity provider or its
   58  owners, affiliates, employees, or agents.
   59         (b) To be enforceable, a waiver or release executed under
   60  this subsection must, at a minimum, include the following
   61  statement in uppercase type that is at least 5 points larger
   62  than, and clearly distinguishable from, the rest of the text of
   63  the waiver or release:
   64  
   65            NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN           
   66  
   67         READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE
   68         AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A
   69         POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT,
   70         EVEN IF (...name of released party or parties...) USES
   71         REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A
   72         CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED
   73         BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE
   74         CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT
   75         BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE
   76         GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER
   77         FROM (...name of released party or parties...) IN A
   78         LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO
   79         YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM
   80         THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU
   81         HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND
   82         (...name of released party or parties...) HAS THE
   83         RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU
   84         DO NOT SIGN THIS FORM.
   85  
   86         (c)If a waiver or release complies with paragraph (b) and
   87  waives no more than allowed under this paragraph, there is a
   88  rebuttable presumption that the waiver or release is valid and
   89  that any injury or damage to the minor child arose from the
   90  inherent risk involved in the activity.
   91         1. To rebut the presumption that the waiver or release is
   92  valid, a claimant must demonstrate by a preponderance of the
   93  evidence that the waiver or release does not comply with this
   94  subsection.
   95         2.To rebut the presumption that the injury or damage to
   96  the minor child arose from an inherent risk involved in the
   97  activity, a claimant must demonstrate by clear and convincing
   98  evidence that the conduct, condition, or other cause resulting
   99  in the injury or damage was not an inherent risk of the
  100  activity.
  101         3. If a presumption under this paragraph is rebutted,
  102  liability and compensatory damages must be established by a
  103  preponderance of the evidence.
  104         (4)(3) All instruments executed by a natural guardian for
  105  the benefit of the ward under the powers specified in this
  106  section are subsection (2) shall be binding on the ward. The
  107  natural guardian may not, without a court order, use the
  108  property of the ward for the guardian’s benefit or to satisfy
  109  the guardian’s support obligation to the ward.
  110         Section 3. This act shall take effect July 1, 2010.

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