Krathen v. School Bd. of Monroe County

Decision Date03 October 2007
Docket NumberNo. 3D07-815.,3D07-815.
Citation972 So.2d 887
PartiesRachel KRATHEN, Appellant, v. The SCHOOL BOARD OF MONROE COUNTY, Florida, Appellee.
CourtFlorida District Court of Appeals

Charles M. Milligan, Key West, for appellant.

Vernis & Bowling and Michael A. Meadows and Curtis Mollohan, Islamorada, for appellee.

Before WELLS and CORTIÑAS, JJ., and FLETCHER, Senior Judge.

CORTIÑAS, Judge.

This is an appeal from an order granting final summary judgment in favor of the School Board of Monroe County ("the School Board") on Rachel Krathen's claim that the School Board's negligence led to injuries she sustained during a cheerleading practice in the gymnasium of Key West High School where Krathen was a student. Specifically, Krathen alleged that the School Board was negligent in:

failing to adequately supervise the cheerleading practice at the Glenn Archer Gymnasium[;] conducting the practice without adequate preparation, knowing or having reason to know of the potential for injury to participants; using inexperienced or untrained personnel to supervise the cheerleading practice[;] failing to place protective mats on the floor so as to cushion impact[;] conducting the practice without the coach being present[;] failing to abide by or follow appropriate School Board policies and/or procedures relating to extracurricular activities[;] being generally careless and negligent.

The School Board, by way of affirmative defense, contended that a Consent and Release from Liability Certificate ("Release") signed by Krathen and her parent/guardian, Mary C. Hornberger, barred Krathen's claim. Based on this affirmative defense, the School Board moved for summary judgment, which the trial court granted. We review an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Here, we conclude that the Release clearly and unambiguously indicates the intent to release the School Board from liability for, as the Release states, "any injury or claim resulting from ... athletic participation." Under Florida law, this language is sufficient to insulate the School Board from liability for negligence claims. "It is settled law that a pre-incident release is not effective to preclude an action based on the, releasee's subsequent negligence unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts." Witt v. Dolphin Research Ctr., Inc., 582 So.2d 27, 28 (Fla. 3d DCA 1991). We find that any claim resulting from athletic participation includes the claim for negligence such as was alleged here.1 Plaintiffs counsel presented no evidence supporting a claim for gross negligence or an intentional tort.

Because we find that the Release covers the negligence claim alleged here, we must determine whether a parent can bind their child, to a waiver of liability. Although we recognize this very question was recently certified to the Florida Supreme Court by our sister court, see Fields v. Kirtan, 961 So.2d 1127 (Fla. 4th DCA 2007), we find our previous decision in Gonzalez v. City of Coral Gables, 871 So.2d 1067 (Fla. 3d DCA 2004), to be controlling. In Gonzalez, we held that a hold harmless agreement, signed by a parent so that her child could participate in a program whereby students received school credit for training as fire rescue personnel, waived liability in the event of a negligence claim. Id. at 1067. In so holding, we concluded that the program, known as the Coral Gables Fire Rescue Explorer Program, "falls within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child's litigation rights in authorizing the child's participation." Id.

This conclusion was based on the Fourth District's holding in Shea v. Global Travel Marketing, Inc., 870 So.2d 20 (Fla. 4th DCA 2003), wherein a mother signed an arbitration provision on behalf of herself and her minor child to enable them to travel on an African safari. Id. at 22. Ultimately, the child died on the safari and his father sought to invalidate the arbitration provision so that he could bring a claim against the safari company for wrongful death. Id. In invalidating the arbitration provision, the Fourth District drew a distinction between areas in which parents can waive their children's litigation rights; and areas where parents cannot waive their children's litigation rights. Id. at 25-26. This distinction was based on policy concerns, with the Fourth District recognizing that a waiver of litigation rights is sometimes necessary to afford children the opportunity to undertake activities beneficial for their health or well-being. Id. at 24. For example, parents may waive their children's rights in order to obtain medical care or insurance. Id. at 24-25. Additionally, a waiver may also be necessary for schools and other non-profit entities...

To continue reading

Request your trial
7 cases
  • Kirton v. Fields
    • United States
    • Florida Supreme Court
    • December 11, 2008
    ...release on behalf of a minor child, for participation on the high school cheerleading squad, enforceable. See Krathen v. School Bd. of Monroe Cty., 972 So.2d 887 (Fla. 3d DCA 2007). In Krathen, the Third District again discussed the Fourth District's distinction in Shea between school-suppo......
  • Applegate v. Cable Water Ski, L.C.
    • United States
    • Florida District Court of Appeals
    • January 4, 2008
    ... ...         Krathen v. School Board of Monroe County, 972 So.2d 887 (Fla. 3d DCA 2007), cited ... ...
  • Elalouf v. Sch. Bd. of Broward Cnty.
    • United States
    • Florida District Court of Appeals
    • January 6, 2021
    ...field. The school board moved for summary judgment, arguing the release barred appellant's action under Krathen v. School Board of Monroe County , 972 So. 2d 887 (Fla. 3d DCA 2007). In his response to the school board's motion for summary judgment, appellant argued only that the release nei......
  • O'Loughlin v. U.S. Tennis Ass'n Inc.
    • United States
    • Florida District Court of Appeals
    • December 18, 2013
    ... ... the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Janis Brustares Keyser, Judge; L.T. Case No. 502012CA011333XXXXMB.Steven ... See Global Travel Mktg., Inc. v. Shea, 908 So.2d 392 (Fla.2005); Krathen v. Sch. Bd. of Monroe Cnty., 972 So.2d 887 (Fla. 3d DCA 2007).WARNER, ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Legal theories & defenses
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...the minor or the minor’s estate in a tort action for injuries resulting from participation. Krathen v. School Bd. of Monroe Cty. , 972 So.2d 887, 888 (Fla. 3d DCA 2007); Gonzalez v. City of Coral Gables , 871 So.2d 1067, 1067-68 (Fla. 3d DCA 2004). 27. Res Judicata bars a second litigation ......
  • Negligence cases
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...the minor or the minor’s estate in a tort action for injuries resulting from participation. Krathen v. School Bd. of Monroe Cty. , 972 So.2d 887, 888 (Fla. 3d DCA 2007); Gonzalez v. City of Coral Gables , 871 So.2d 1067, 1067-68 (Fla. 3d DCA 2004). NEGLIGENCE CASES §2:40 Florida Causes of A......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT