Disney, other tourism businesses try again for lawsuit protections

Horseback riding at Walt Disney World (Courtesy of Walt Disney World)

A contentious legal issue involving Walt Disney World and other Florida tourism businesses has been resurrected.

A state lawmaker recently re-filed a bill aiming to overturn a 2008 Florida Supreme Court ruling in which the court said parents do not have the authority to sign away legal claims on behalf of their children. That decision has undermined the pre-injury release waivers used by Disney and scores of other recreational businesses that cater to kids.

Disney World, for instance, requires parents to sign waivers on behalf of their kids when they go horseback riding or rent motor boats.

The tourism industry tried last year to the Florida Legislature to undo the decision, but the effort failed amid fierce opposition from the state’s trial lawyers.  Now, it appears the two lobbies will re-fight the battle again when lawmakers return to Tallahassee in March.

Below are a couple of stories from last spring examining the issue.

Orlando Sentinel (Florida)

April 17, 2009 Friday
FINAL

How to let kids take risks, be safe from negligence?

BYLINE: Jason Garcia, Sentinel Staff Writer

SECTION: A SECTION; FINAL; Pg. A1

LENGTH: 867 words

Guests who want to cruise the lakes and lagoons at Walt Disney World can rent everything from two-person Sea Raycers to leisurely pontoon boats — as long as they sign a waiver protecting Disney from lawsuits should anything go wrong on the water.

Those releases, which parents must sign for themselves and on behalf of their children, are designed to cover injuries caused by the typical risks that accompany boating, such as unpredictable weather or the threat of collision with other objects. But they also cover accidents in which Disney might be negligent.

The scope of such waivers — whether they should protect even negligent companies — is at the crux of a debate playing out this spring in the Florida Legislature, where lawmakers are weighing whether parents should have the right to sign pre-injury releases for their children before those kids participate in activities such as rock climbing, scuba diving, animal encounters and more.

Trial lawyers say businesses should not be allowed to make their customers waive negligence claims in advance. Doing so, they say, protects a potentially guilty company at the expense of innocent victims who must then pay their own medical bills — and at the expense of taxpayers, who wind up footing the bills if the victims can’t.

But businesses say it is imperative that liability waivers cover negligence claims. They say it is the only way to prevent an avalanche of expensive-to-defend lawsuits alleging negligence where none actually exists.

The impasse threatens to derail the Florida tourism industry’s attempt this spring to overturn a recent state Supreme Court ruling that invalidated parental waivers. A version of the measure in the Florida House (HB 363) would permit waivers to cover negligence, but a competing bill in the Senate (SB 886) would not; the Legislature has only two weeks to resolve the issue before its 2009 session ends May 1.

A spokeswoman for Disney World said the resort’s waivers “are written consistent with Florida case law prior to the Supreme Court ruling.”

“It helps prevent frivolous lawsuits,” spokeswoman Zoraya Suarez added.

Disney is hardly unique. Scores of recreational businesses across Florida — including SeaWorld Orlando, Universal Orlando and Gatorland, among others locally — have customers sign releases before allowing them to participate in certain activities.

Many of those same businesses are now lobbying the Legislature to reinstate parents’ rights to sign for their kids. But the effort has sparked a debate about just how broad those liability releases should be.

Legal experts say there are several levels of negligence, depending on how recklessly a business acts in contributing to an accident. And they say waivers offer a business little defense in the most severe categories, such as “gross negligence” or “culpable negligence.”

But waivers are often a strong defense in cases of basic negligence, where a business fails to act “reasonably” prudently.

Lawyers say they agree that businesses should be protected from lawsuits in accidents that occur because of the “inherent risk” of an activity — a climber loses footing on a rock wall and is knocked unconscious, for instance, or a water skier falls while cresting a wave and breaks a leg.

But they argue that such protection should not extend to negligence — the rock-wall owner did not inspect a frayed rope that then breaks, for instance, or the ski-boat owner steered over shallow water.

“Are we going to be a state that, public-policy-wise, says that we excuse negligent, harmful acts against children? That’s what it boils down to,” said Michael Haggard, president-elect of the Florida Justice Association, the trade group for the state’s trial lawyers.

But businesses say the issue is more complicated than that.

The vast majority of accidents, they say, are cases of inherent risk, not negligence. The problem is that, unless a waiver protects against both, there would be nothing to prevent a victim’s lawyer from claiming negligence in every accident.

That can change the dynamics of a case significantly.

For example, a business that has a signed waiver in hand is more likely to win a quick, “summary judgment” in a negligence case, which might cost it about $25,000 in legal fees. But if it has to mount a full defense against even a bogus negligence claim, it can cost the business between $75,000 and $100,000 in legal fees, at a minimum, said William Large, president of the Florida Justice Reform Institute, a business-backed organization that advocates for lawsuit restrictions.

In the first case, a victim’s lawyer might ask to settle for about $20,000, Large said, because that’s slightly less than the expense of a quick lawsuit. But in the second scenario, the plaintiff’s lawyer would likely seek a much higher settlement — say, about $60,000. And because of the greater expense, the business would have to consider settling, even if it thinks it would ultimately prevail.

The trial lawyers’ effort to prevent waivers from including negligence “is about leverage,” Large said. “It’s about shifting the leverage to the plaintiff’s attorneys.”

CONTACT: Jason Garcia can be reached at jrgarcia@orlandosentinel.com or 407-420-5414.

Orlando Sentinel (Florida)

March 18, 2009 Wednesday
FINAL

Parks: Let parents say what’s safe

BYLINE: Jason Garcia, Sentinel Staff Writer

SECTION: A SECTION; FLORIDA; Pg. A1

LENGTH: 960 words

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.

CONTACT: Jason Garcia can be reached at jrgarcia@orlandosentinel.com or 407-420-5414.