Let parents say what’s safe, theme parks urge

South Florida Sun Sentinel--March 18, 2009

Jason Garcia

Sentinel Staff Writer

Gatorland’s “Trainer for a Day” is the ultimate natural thrill ride: a two-hour chance for guests to work alongside reptile trainers as they handle the theme park’s signature tenants.

It used to be open to children as young as 12. But in February, Gatorland made it an adults-only experience.

The move was among the earliest responses to a recent Florida Supreme Court decision that parents do not have authority to sign away children’s right to sue before they take part in potentially dangerous commercial activities.

The ruling has rippled across Florida’s tourism industry, where many operators such as Gatorland use pre-injury waivers to protect themselves from lawsuits in case of accidents. The case has also sparked a lobbying campaign in Tallahassee – backed by heavyweights such as Walt Disney World, SeaWorld Orlando and the Florida Restaurant and Lodging Association – to get state lawmakers to overturn the decision.

But critics, led by the state’s trial lawyers, say the measure now being debated in the Capitol overreaches. If it is approved, they say, it could protect even negligent recreational businesses that put children in harm’s way.

It is shaping up as an intense fight. A bill (HB 363) to reverse the court ruling stalled Tuesday in Tallahassee after a protracted committee hearing ended without a vote; it could be resurrected as soon as Thursday.

“To me, as a parent, it’s stripping us of our parental right,” Mark McHugh, president and chief executive officer of Gatorland, said of the court decision. He added that his theme park raised the trainer-for-a-day age limit to 18 or older rather than pay a sharply higher commercial-liability-insurance premium. “It adds a layer of liability to us, and it’s just not worth it to take it on right now.”

The controversy erupted in December, when the state Supreme Court ruled in a case in which a father took his 14-year-old son to an all-terrain-vehicle course near Okeechobee. The teen was thrown from his ATV while attempting a jump; it landed on and killed him.

The father had signed a liability waiver on his son’s behalf. But his mother, who was divorced from the father, said she was unaware her son was participating in the activity, and the boy’s estate subsequently sued the owners of the course.

In its ruling, the court said there is “injustice” when parents deprive their child of legal relief when the child is then injured by someone else’s negligence. It also said waivers eliminate an incentive for businesses to take safety precautions for minors.

Justices tailored their decision to apply only to commercial operators, not community or school groups, which may be unable to afford insurance and could lose volunteers scared away by the threat of substantial jury awards. But the decision still has widespread implications.

Tourism officials say scores of businesses across the state, from companies offering water-scooter rentals and snorkeling tours to sky diving and wall climbing, depend on pre-injury waivers. They say many nontourism operators are potentially at risk, such as youth camps and sports leagues.

“I think what’s most concerning is there is not a good distinction between what the Supreme Court ruled is commercial and noncommercial,” said Bill Lupfer, president of the Florida Attractions Association, which represents smaller attractions across the state.

Some of Orlando’s biggest players are affected. Walt Disney World requires parents to sign legal waivers for their children for horseback riding and boat rentals, among other activities. SeaWorld Orlando requires them for Discovery Cove’s dolphin swims, other animal interactions and the “Xtreme Zone” trampoline, among others. Both theme parks are now lobbying for the bill to overturn the court decision.

“We are working with the different types of recreational-activity providers to support the legislation,” Disney spokeswoman Kim Prunty said.

“Along with numerous sporting, school and entertainment entities, we support the clarification this bill provides in defining that a parent has the right to decide activities appropriate for their own children – whether these be academically or socially focused pursuits, physically rigorous activities, sports or an adventure vacation,” SeaWorld spokeswoman Becca Bides added.

A spokesman for Universal Orlando said the resort requires waivers only for its Fear Factor Live attraction, which is open only to guests 18 or older.

Foes of the bill say it will protect reckless businesses because parents could waive “any claim or cause of action.”

Michael Haggard, incoming president of the Florida Justice Association, the trial-lawyer trade group, said companies guilty of negligence could sidestep lawsuits by requiring parents to sign a waiver. His group is shopping language that would protect businesses against injuries caused by the “inherent risk” of an activity – but not when the injury is caused by negligence.

“If you’re going horseback riding and a bee bites the horse, and the horse, who’s never bucked before, bucks and throws somebody off, you shouldn’t be responsible for that,” Haggard said. “But if you put a horse out there that you want to break in for its first ride, then that’s absolute negligence.”

But business lobbyists say that won’t help them, because plaintiffs could claim negligence in any scenario. Even if the business ultimately won a ruling that it was not negligent, it would still have to spend tens or hundreds of thousands of dollars in legal fees, said William Large, president of the Florida Justice Reform Institute, a business group that pushes lawsuit restrictions.

“That’s a cost that needs to be passed on to consumers,” Large said.