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Thomas DeLattre and Glen D. Wieland

How Can an Indemnification Agreement Affect a Personal Injury Case Involving Your Injured Child?

On Behalf of | May 22, 2018 | Florida Laws |

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It all started with an ear piercing. A 13-year-old girl walked into a Claire’s store in 2012 with her mother and walked out with an infection that would result in prolonged medical treatment, hospitalization, and deformity of the girl’s ear. Though seemingly an open and shut personal injury case, the details make it anything but simple. While at the boutique, Mom signed an agreement that stated:

I am the parent or legal guardian of a minor under 18 years of age, and I hold only myself liable and hereby release and waive any and all claims that I or the minor may make as a result of this ear piercing.  I further agree that I shall indemnify and hold Claire’s harmless with respect to any and all claims that I or my minor child may make as a result of this ear piercing, even if due to the sole or join negligent acts or omissions of Claire’s Boutiques, Inc., its agents or employees.

The Case

Despite signing this release, the mother decided to take the case to court on behalf of her daughter after her daughter suffered a serious ear infection following the ear piercing.

At trial, Claire’s attempted to establish that its staff was indeed trained on how to pierce ears, sharing that staff had to pass a written exam before being allowed to pierce ears. However, Claire’s did not provide evidence that their staff was trained on how to properly sterilize equipment and was unable to prove that the specific employee who performed the piercing had undergone this training.

Both sides presented medical evidence as to causation.

The Verdict

After deliberation, the jury found Claire’s 75% responsible for the daughter’s damages and responsible for an award of $69,740. As you might imagine, Claire’s pointed to the release signed by the mother and filed a motion for reimbursement from the mother to the tune of $200,000, including the defense costs, attorney’s fees and judgment. Unfortunately for the mother, the judge agreed that she was responsible to pay, based upon the release she signed.

The mother appealed this judgment, however, claiming the agreement violated Florida’s public policy. The case ended up at the Fourth District Court of Appeal, who concluded that any indemnity agreement that forced a parent to indemnify the provider of a commercial activity for their child’s injury due to the negligence of the provider is invalid. The court statement stated:

This indemnification agreement between a commercial activity provider and a parent, requiring the parent to indemnify the commercial entity for its own negligence when the commercial provider injures the child of the parent, is invalid.  Such an onerous provision conflicts with the public policy expressed in Kirton v. Fields, 997 So.2d 349 (Fla.2018) that requires the state “to assert its role under paren patriae to protect the interests of the minor children” where a parent’s release, or in this case indemnity, would impact a child’s well-being and leave a parent with the prospects of bearing the financial burden caused by the negligence of the activity provider, thus protecting only that provider’s interest and not the overall welfare of the child.  It also conflicts with the public policy pronouncements of both Ard v. Ard, 414 So.2d 1066 (Fla.1982) and Joseph v. Quest, 414 So.2d 1063 (Fla.1982).

Protecting the family unit is a significant public policy behind parental immunity.  We are greatly concerned by any intrusion that might adversely affect the family relationship.  Litigation between family members would be such an intrusion.

If you, a family member or your child are unfortunately injured after signing a type of “waiver of liability” agreement, please contact our personal injury attorneys today to get the help you need.  We would be happy to review the facts of the case as well as the language contained in the “waiver” for possible representation. For additional resources, keep checking our blog, Like us on Facebook and follow us on Twitter for more helpful hints and to always be informed about best practices in law.


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