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Florida Fourth DCA rules that release signed by student athlete releasing school board from liability for future sports injuries was enforceable even though athlete was a minor

On January 6, 2021, in Elalouf v. School Board of Broward County, No. 4D19-3272, the Florida Fourth DCA ruled that a high school athlete was barred from suing the school board of Broward County for injuries he sustained during a soccer game when he was thrown into an unpadded cement barrier near the soccer field. The plaintiff and his father had executed a “Consent and Release from Liability Certificate” prior to the game which contains a release of the school board for “liability for any injury or claim resulting from such athletic participation,” and a section in bold font which states, in part, that even if the School District “USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED” and that “THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED.” In response to a summary judgment motion, the plaintiff argued that that the release neither mentioned the word “negligence” nor released the school board from its own negligence. The trial court entered a summary judgment, relying on Krathen v. School Board of Monroe County, 972 So. 2d 887 (Fla. 3d DCA 2007), a case in which the Third DCA had held a similar waiver enforceable.  On appeal, the plaintiffs raised an argument not made before the trial court, namely, that this sort of release should be treated no differently than a commercial pre-injury release, which is unenforceable when executed by a parent on behalf of a minor and the injuries results  from participation in a commercial activity.  See Kirton v. Fields, 997 So. 2d 349 (Fla. 2008). The Fourth DCA held that the plaintiffs did not properly preserve their argument for appeal because it was not raised at the trial court level, (citing Sanchez v. Miami-Dade Cty., 286 So. 3d 191, 195 (Fla. 2019)) and the trial court did not commit an error “that went to the heart of the judicial process” (citing Fleischer v. Fleischer, 586 So. 2d 1253, 1254 (Fla. 4th DCA 1991).  Further, the Fourth DCA concluded that even if the argument had been properly preserved, the holding in Kirton specifically did not extend to a release involving a non-commercial activity provider.