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Spencer Aronfeld

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Piercing an Injured Child's Legal Rights

Posted: 06/07/2012 1:34 pm

A 13-year-old girl had her ears pierced at a Claire's Store in Florida and ended up with a significant deformity. Before getting pierced, her mother was asked by Claire's to sign a general release form; waiving any claims her daughter might have if she was injured. The form included any potential claims against Claire's or its employees for negligently performing the ear piercing. Additionally, the form promised to indemnify Claire's and its employees if her daughter sued them. In other words, if her daughter was hurt and sued Claire's and received a verdict, the agreement made the mother personally responsible for reimbursing Claire's for any amount Claire's was ordered to pay, including attorney's fees and costs.

Following her piercing, the girl developed a very serious infection requiring extensive hospitalization and medical treatment. Now she has a permanently disfigured ear. She then sued Claire's. Claire's claimed that the release that her mother signed waived any right that her daughter may have had.

At the jury trial, there was evidence that employees of Claire's are trained how to pierce ears but not provided any information regarding how to sterilize the equipment, including the surgical pen that is used to mark the area to be pierced. In addition, Claire's employees must pass a written test before being allowed to pierce ears. However, Claire's could not prove that their employee who did the piercing had received any training, nor was there evidence of it in her employee file.

Claire's retained a pediatric infection expert who told the jury that the girl did not contract her infection from the piercing at the store and must have been infected several days after the piercing from another source.

The jury returned a verdict finding Claire's 75% responsible and awarding $69,740. Claire's then turned around and filed a motion to require the mother to reimburse it pursuant to the indemnification agreement. The judge agreed with Claire's that the mother was required to reimburse it, and entered a verdict against her mother for more than $200,000 -- including Claire's defense costs, attorney's fees and the judgment Claire's owed to the plaintiff.

Both Claire's and the family appealed. The mother argued that the agreement she signed, requiring her to reimburse or indemnify Claire's, was against Florida's public policy and should be voided. Fortunately for her -- as well as all other parents in Florida who may be asked to sign one of these ridiculous contracts -- the Fourth District Court of Appeal agreed. Specifically, the court held that any indemnification agreement requiring a parent to indemnify a commercial activity provider for injuries their children suffer as a result of the business' negligence is invalid.

In Florida, parents are immune from personal injury claims brought by their children. That rule concept is based on a policy of discouraging intra-family lawsuits, to promote harmonious family relationships while preserving the family's economic resources. Moreover, if parents were at risk of being sued for their children's injuries, it might prevent them from suing non-family members who are partly responsible for harming their children for fear of being dragged into the case as a third party defendant.

Judge Levine wrote a very vocal dissent from the Fourth District Court's majority decision to invalidate the indemnification agreement, saying the importance of upholding contract rights should prevail over public policies protecting the rights of an injured child. The question of whether these types of agreements are enforceable may now be addressed by the Supreme Court of Florida, if it chooses to hear the case, or by the legislature. The Florida Legislature recently enacted a new statute, §744.301(3), which allows parent to release a commercial activity provider for a child's injuries under circumstances, if the injury is recognized as an inherent risk of participating in the activity.

For the time being, my recommendation, as a parent of a 10-year-old son and 13-year-old daughter, as well as a Florida lawyer who sues businesses that hurt children, is not to sign any document that affects your children's rights to receive compensation for injuries, medical expenses, or any other harm caused by a business without first consulting with your family lawyer. You might inadvertently be giving up your child's legal rights.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.

 

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