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In a case with potential ramifications for the travel and recreation industries, the Florida Supreme Court has heard oral arguments in a wrongful-death case involving an 11-year-old boy who was fatally mauled by hyenas while on safari with his mother in Botswana. The case, Global Travel Marketing v. Shea, involves a release form that Molly Bruce Jacobs signed on behalf of her 11-year-old son, Garrit, who was dragged from his tent by hyenas and killed during their African vacation in July 2000. In the waiver, Jacobs agreed to arbitrate all potential legal claims with the Fort Lauderdale, Fla.-based safari company, Global Marketing Travel Inc. The issue in the case is whether a parent can bind a child to arbitration when signing release forms allowing children to participate in commercial travel activities. The justices expressed confusion Tuesday about where to draw the line between activities that parents could authorize on their own and those that require court approval. “Are we going to start micromanaging family decisions about what kind of travel is high risk and what kind is not high risk?” Justice Raoul G. Cantero III asked. “What if a devout Jewish parents wanted to send their child to Jerusalem for his bar mitzvah? Are the courts to determine whether it’s too high risk to send a child to Israel?” Following the boy’s death, his father Mark Shea, who was divorced from Jacobs, filed a wrongful-death suit against Global Travel in Florida’s Broward County Circuit Court. Shea claimed the tour group had been negligent in allowing his son to sleep alone in a tent in the outer perimeter of the campsite. He also argued that his claim was not bound by the arbitration agreement signed by his ex-wife because Florida law did not permit parents to sign away a child’s legal rights. In February 2002, Broward Circuit Court Judge Charles Greene ruled that the arbitration agreement that Jacobs signed on behalf of her son was binding on all parties, including Shea. As a personal representative of the boy’s estate, Shea essentially “stood in the shoes” of his dead son, who was bound by the agreement to arbitrate, Greene said. That pleased business groups, which contend that encouraging arbitration is good public policy because arbitration cases are resolved more quickly and result in lower damage awards than cases that go to trial. But in May 2003, the state’s 4th District Court of Appeal unanimously overturned Greene. The panel ruled that a parent could not sign arbitration agreements on behalf of their children in cases involving commercial companies. Parents can only waive these rights in limited circumstances, such as securing health insurance for their children or signing them up to play soccer, the panel said. State courts long have exercised power to protect children under the common-law rule of parens patriae, the 4th DCA said. Under the rule, the state is the ultimate guardian of children who live within its jurisdiction. The 4th DCA panel expressly stated that its ruling did not apply to waivers that parents sign for their children’s medical care or for participation in “commonplace child-oriented community or school-supported activities.” Global Travel appealed the 4th DCA’s decision. Representing Shea before the Supreme Court on Tuesday, West Palm Beach, Fla., lawyer Philip Burlington argued that a parent cannot bind a child to arbitration unless there is a compelling public policy interest to do so. Such public policy interests could include getting access to health care or participating in team sports that teach children sportsmanship. “The analysis should start with the presumption that a parent doesn’t have the right to waive the substantive rights of a child,” Burlington said, referring to the right to jury trial. “It’s the court’s role to protect the minor’s rights.” But the justices seemed worried about establishing precedent that could require court review of family decisions. Justice Harry Lee Anstead asked Burlington whether parents would have the authority to sign a waiver for their child to participate in a 5-kilometer race or go on a family vacation to climb Mount Kilimanjaro. Burlington responded that the 4th DCA’s decision applied only to commercial travel groups and not school-sponsored activities or activities that a child would normally do, such as running in a race or playing football. “If a school decided to take kids on a safari, would that make it OK?” Justice Peggy A. Quince asked. “If a school decides to do it, they get input from all the parents, it’s not just a unilateral decision,” Burlington replied. “To address all possible scenarios in one opinion would be a Herculean task. We’re just dealing with this one case.” Global Travel’s attorney, Rodney Gould, said prohibiting a parent from signing such waivers on behalf of their children interferes with a family’s constitutional right to privacy. “There’s nothing to suggest that a safari is an inappropriate family activity,” said Gould, a partner at Rubin Hay & Gould in Framingham, Mass. Gould also argued that the case is governed by the Federal Arbitration Act, which strongly favors enforcement of arbitration agreements. The act prohibits state courts from refusing to enforce arbitration agreements because of a state’s public policies or interests, Gould said. The only exceptions are when a contract is signed under duress or its contents are unconscionable or fraudulent. But the justices seemed to reject the idea that the federal arbitration act trumped Florida contract law. The question before the Supreme Court is not the substance of the arbitration agreement but whether a parent had authorization to sign it on behalf of his or her child, Justice Cantero said. “This has nothing to do with the arbitration agreement itself,” Cantero said. “The son didn’t even sign it. So it’s not a federal arbitration issue at all.”

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