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Florida Forth DCA rules that arbitration provision in release and waiver form was valid and enforceable against minor accident victim who forged parent’s signature on form

On August 12, 2020, in Off the Wall & Gameroom LLC v. Gabbai, No. 4D19-2657,  the Florida Fourth DCA reversed a trial court’s ruling denying a defendant’s motion to compel arbitration in a premises liability case involving an accident at an indoor trampoline park. The injured party, a thirteen year old represented in the litigation by his father, had visited the defendant’s facility while his parents were of town and forged his parent’s name on one of the defendant’s release and waiver forms to get access to the facility.  After the father filed the premises liability lawsuit following the accident, the defendant moved to compel arbitration based on the arbitration provision in the release and waiver.  In its order denying the motion to compel arbitration, the trial court found: (1) the facility’s reliance on the representations in the child’s release and waiver was not reasonable; (2) the facility did nothing to investigate or verify the information which the child provided; (3) the facility did not substantially change its position in reliance on the child’s representations; and (4) the entire release and waiver, including the arbitration provision, was unconscionable, void, and unenforceable. The Fourth DCA observed that contracts executed by minors are generally voidable, but a minor may be estopped from avoiding a contract if he or she induced the other party to enter into the contract by fraud.  The Court cited Watkins v. Watkins, 166 So. 577, 578–79 (Fla. 1936) (“[i]f an estoppel can arise against an infant, all the elements of an estoppel must concur. The conduct of the infant must have been fraudulent, and believed in, relied on, and acted upon by the other party.” (quoting 31 C.J. 1005)); Mossler Acceptance Co. v. Perlman, 47 So. 2d 296, 296-298 (Fla. 1950) (minor could not rescind an automobile sales contract because he induced the dealer to sell him the automobile by fraudulently misrepresenting that he was an adult); McElroy v. Gay, 22 So. 2d 154, 154 (Fla. 1945) (“[i]nfants are no more entitled than adults to gain benefits to themselves by fraud. If the deed was procured by the means alleged[,] the defendant has no right either in morals or law to retain the fruits of her fraud”).  While the trial court maintained that the release and waiver were not valid because the defendant did nothing to investigate or verify the information on the form, the Fourth DCA observed that  that in the context of conduct constituting an intentionally fraudulent misrepresentation, Florida law imposes no duty to investigate, citing Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010).  The plaintiff argued that the falsity of the child’s representations was obvious, and cited  Besett v. Basnett, 389 So. 2d 995, 997 (Fla. 1980) for the proposition that the recipient of a fraudulent representation is “required to use his senses” and cannot recover if the falsity would have been obvious if he had made “a cursory examination or investigation,” also citing Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334, 339 (Fla. 1997) (holding that the recipient of information is “responsible for investigating information that a reasonable person in the position of the recipient would be expected to investigate”). The Fourth DCA disagreed with the assertion that the representations were obvious or could have been discovered by a cursory investigation and more generally rejected the plaintiff’s argument that equitable estoppel always requires “reasonable” reliance on the misrepresentation. The Court acknowledged that it had so ruled in previous cases but distinguished those cases as not involving fraudulent misrepresentations.

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