August 04, 2020
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       ENROLLED
       2010 Legislature                                  CS for SB 2440
       
       
       
       
       
       
                                                             20102440er
    1  
    2         An act relating to liability releases; amending s.
    3         549.09, F.S.; redefining the term “nonspectators” to
    4         include a minor on whose behalf a natural guardian has
    5         signed a motorsport liability release; providing that
    6         a motorsport liability release signed by a natural
    7         guardian on behalf of a minor participating in a
    8         sanctioned motorsports event is valid to the same
    9         extent as for other nonspectators; limiting the
   10         validity of a waiver or release signed by a natural
   11         guardian on behalf of a minor participating in an
   12         activity at a closed-course motorsport facility other
   13         than a sanctioned motorsports event; amending s.
   14         744.301, F.S.; authorizing natural guardians to waive,
   15         in advance, claims for injuries arising from risks
   16         inherent in a commercial activity; defining the term
   17         “inherent risk”; providing a statement that must be
   18         included in the waiver; creating a rebuttable
   19         presumption that a waiver is valid and that the injury
   20         arose from the inherent risk; providing the
   21         requirements and standard of evidence for overcoming
   22         the presumption; authorizing natural guardians to
   23         waive, in advance, any claim against a noncommercial
   24         provider to the extent allowed by common law;
   25         providing an effective date.
   26  
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Paragraph (g) of subsection (1) and subsection
   30  (3) of section 549.09, Florida Statutes, are amended to read:
   31         549.09 Motorsport nonspectator liability release.—
   32         (1) As used in this section:
   33         (g) “Nonspectator” “Nonspectators” means an event
   34  participant participants who has have signed a motorsport
   35  liability release or, in the case of a minor, whose natural
   36  guardian has signed a motorsport liability release on behalf of
   37  the minor.
   38         (3)(a) A motorsport liability release may be signed by more
   39  than one person if so long as the release form appears on each
   40  page, or side of a page, which is signed. A motorsport liability
   41  release must shall be printed in 8 point type or larger.
   42         (b)1.If a minor is participating in a motorsports event as
   43  defined in s. 549.10, the motorsport liability release must
   44  comply with the requirements of this section and is valid to the
   45  same extent provided for other nonspectators under this section.
   46         2.If a minor is participating in an activity at a closed
   47  course motorsport facility, other than a motorsports event as
   48  defined in s. 549.10, a waiver or release must comply with the
   49  requirements in s. 744.301(3) and is valid only to the extent,
   50  and subject to the presumptions, provided in that subsection.
   51         Section 2. Present subsection (3) of section 744.301,
   52  Florida Statutes, is redesignated as subsection (4) and amended,
   53  and a new subsection (3) is added to that section, to read:
   54         744.301 Natural guardians.—
   55         (3)In addition to the authority granted in subsection (2),
   56  natural guardians are authorized, on behalf of any of their
   57  minor children, to waive and release, in advance, any claim or
   58  cause of action against a commercial activity provider, or its
   59  owners, affiliates, employees, or agents, which would accrue to
   60  a minor child for personal injury, including death, and property
   61  damage resulting from an inherent risk in the activity.
   62         (a)As used in this subsection, the term “inherent risk”
   63  means those dangers or conditions, known or unknown, which are
   64  characteristic of, intrinsic to, or an integral part of the
   65  activity and which are not eliminated even if the activity
   66  provider acts with due care in a reasonably prudent manner. The
   67  term includes, but is not limited to:
   68         1. The failure by the activity provider to warn the natural
   69  guardian or minor child of an inherent risk; and
   70         2. The risk that the minor child or another participant in
   71  the activity may act in a negligent or intentional manner and
   72  contribute to the injury or death of the minor child. A
   73  participant does not include the activity provider or its
   74  owners, affiliates, employees, or agents.
   75         (b) To be enforceable, a waiver or release executed under
   76  this subsection must, at a minimum, include the following
   77  statement in uppercase type that is at least 5 points larger
   78  than, and clearly distinguishable from, the rest of the text of
   79  the waiver or release:
   80  
   81            NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN           
   82  
   83         READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE
   84         AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A
   85         POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT,
   86         EVEN IF (...name of released party or parties...) USES
   87         REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A
   88         CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED
   89         BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE
   90         CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT
   91         BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE
   92         GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER
   93         FROM (...name of released party or parties...) IN A
   94         LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO
   95         YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM
   96         THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU
   97         HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND
   98         (...name of released party or parties...) HAS THE
   99         RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU
  100         DO NOT SIGN THIS FORM.
  101  
  102         (c)If a waiver or release complies with paragraph (b) and
  103  waives no more than allowed under this subsection, there is a
  104  rebuttable presumption that the waiver or release is valid and
  105  that any injury or damage to the minor child arose from the
  106  inherent risk involved in the activity.
  107         1. To rebut the presumption that the waiver or release is
  108  valid, a claimant must demonstrate by a preponderance of the
  109  evidence that the waiver or release does not comply with this
  110  subsection.
  111         2.To rebut the presumption that the injury or damage to
  112  the minor child arose from an inherent risk involved in the
  113  activity, a claimant must demonstrate by clear and convincing
  114  evidence that the conduct, condition, or other cause resulting
  115  in the injury or damage was not an inherent risk of the
  116  activity.
  117         3. If a presumption under this paragraph is rebutted,
  118  liability and compensatory damages must be established by a
  119  preponderance of the evidence.
  120         (d)Nothing in this subsection limits the ability of
  121  natural guardians, on behalf of any of their minor children, to
  122  waive and release, in advance, any claim or cause of action
  123  against a noncommercial activity provider, or its owners,
  124  affiliates, employees, or agents, to the extent authorized by
  125  common law.
  126         (4)(3) All instruments executed by a natural guardian for
  127  the benefit of the ward under the powers specified in this
  128  section are subsection (2) shall be binding on the ward. The
  129  natural guardian may not, without a court order, use the
  130  property of the ward for the guardian’s benefit or to satisfy
  131  the guardian’s support obligation to the ward.
  132         Section 3. This act shall take effect upon becoming a law.

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