FORT LAUDERDALE, Fla. -- A Florida state appellate court issued a
ruling that could force tour operators to use the court system
rather than less-costly arbitration when settling disputes
involving underage clients -- even if their parents had signed a
waiver on their behalf.
More broadly, the decision could undermine the value of all
pretrip releases signed by parents on behalf of children, said
Rodney Gould, attorney for the defendant in the Florida case.
Two lawsuits were filed against Africa Adventure Co. here by the
parents of an 11-year-old boy who was killed during a safari in
Africa in 2000.
The mother bought the FIT program for herself and her son. Prior
to departure, the mother signed a release on her son's behalf,
acknowledging that "adventure travel can be dangerous" and agreeing
that any disputes that might arise from the trip would be settled
by binding arbitration.
The safari included a stay in tents in Botswana. One night,
hyenas entered the boy's tent and killed him. The mother sued
African Adventure Co., seeking damages for pain and suffering. At
both the county and appellate court levels, the judges agreed with
the operator that the mother was bound by her pretrip agreement to
go to arbitration.
Separately, the father, seeking damages for a wrongful death on
behalf of the son's estate, argued that a parent could not sign
away a child's right to a court trial. The county court disagreed,
but the appellate court supported the father and said his survivor
claim could be pursued in court.
Gould, a Massachusetts attorney who frequently represents agents
and operators, said he is concerned the decision will lead tour
operators to shy away from selling to families if they are not able
to limit post-trip claims to the arbitration route.
More broadly, he said, the decision could be read to mean
parents cannot sign away any rights for a child, even if they are
signing something as basic as an agent's one-sentence disclaimer
stating the retailer cannot be responsible for the negligence of a
third-party supplier.
Travel attorney Mark Pestronk said despite the decision, tour
operators should continue getting waivers from parents signed on
behalf of children because, for one thing, the waiver's greatest
value is as a deterrent to litigation. Moreover, another court in
another state might not agree with the Florida ruling, he said.
Pestronk takes a different view of arbitration, however: "I
counsel clients not to use arbitration clauses," he said, because
that makes it easier for consumers to start actions and haggle to
get at least some of part of a trip price refunded.
Nevertheless, he agreed with Gould that the Africa Adventure
decision has broad implications, and that it is "definitely" a
threat to all other releases meant to cover children.
The Florida case is not over, however. Gould said he petitioned
for a review at the Florida Supreme Court. If the decision stands
in Florida after appeals are exhausted, its influence outside
Florida will be determined by how other courts view it when passing
judgment in similar cases, Gould said.