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The Week in Torts – Cases from the Week of August 21, 2020
I Don’t Care If You’re Young, You Lied!
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 33
CASES FROM THE WEEK AUGUST 21, 2020
COURT ENFORCES ARBITRATION AGREEMENT WHERE MINOR FRAUDULENTLY EXECUTED THE RELEASE AND WAIVER IN ORDER TO ENTER A TRAMPOLINE PARK.
Off the Wall Gameroom v. Gabbal, 45 Fla. L Weekly D1911 (Fla. 4th DCA August 12, 2020):
The defendant operated an indoor trampoline park and entertainment center. Before allowing access to its premises, it requires all participants to execute a release and waiver of liability, which includes an arbitration agreement. If a participant is under 18, a parent or legal guardian must execute the release and waiver.
A thirteen-year old whose parents were out of town was dropped off at the facility by his sister. He completed the release and waiver at a computer kiosk inside the facility, entering his name and date of birth, but entering a fictitious name as his parent or legal guardian, using a fake date of birth (making his purported parent only 24). He used his sister’s driver’s license number.
After the boy was injured, the facility moved to compel arbitration. The plaintiff opposed it by producing a verified affidavit stating that the release and waiver was not signed by the child’s parent or guardian, that the waiver was executed fraudulently.
At an evidentiary hearing, the child testified that no one at the facility was supervising the computer kiosk, that no one asked him for identification, and no one suggested that he call his parents. The boy testified that he did not understand what any of the legal terms in the release and waiver meant. The trial court refused to enforce the release and waiver, reasoning that the facility should have implemented measures to ensure that a parent or guardian sign the form.
The Fourth District reversed. It explained that the issue was whether a minor could use the “infancy defense” to avoid a contract, where the minor procured that contract by fraud. The court held the answer in this case was no. It said that Florida law imposes no duty to investigate, and that the supreme court has made it clear that in the context of conduct constituting an intentionally fraudulent misrepresentation, there is no duty to investigate.
In response to the argument on appeal that there were significant inconsistencies and red flags as to the information provided, i.e., the date of birth for the guardian was only eleven years before the child’s own date of birth, and the driver’s license number belonged to someone born in 1997 when the child represented that the person who signed for him was born in 1992, the court refused to consider those arguments for failure to raise them below. Also, there was nothing to negate the possibility that this alleged guardian who was 24 was not the child’s guardian.
The court ruled the infancy defense was unavailable because the child intentionally misrepresented the information on the release and waiver agreement. It also reversed the trial court’s determination that the entire release and waiver were unconscionably void and unenforceable, because the issue was not raised in the motion and was beyond the scope of the hearing. However, the court reversed without prejudice to allow the plaintiffs to further attack the validity of the document itself in the trial court.
TRIAL COURT ERRONEOUSLY DISMISSED A LEGAL MALPRACTICE CASE BASED ON STATUTE OF LIMITATIONS, BECAUSE IT HAD TO LOOK BEYOND THE FOUR CORNERS OF THE COMPLAINT TO DO SO.
Hurley v. Lifsey, 45 Fla. L Weekly D1948 (Fla. 2nd DCA August 14, 2020):
The court reminded us that a motion to dismiss is not a substitute for a motion for summary judgment. In ruling on a motion to dismiss, the trial court is confined to the consideration of the allegations found within the four corners of the complaint.
Here, the trial court had to look beyond the four corners of the amended complaint to rule. While plaintiff merely alleged that final summary judgment in the prior lawsuit was entered on a certain date, the court had to actually go beyond that allegation to determine whether there was an appeal and other matters to see when the judgment became final pursuant to Silverstrone v. Edell, 721 So.2d 1173 (Fla.1998). As such, it was error for it to dismiss.