At the end of April, an appeals court in South Florida decided a
personal injury case squarely in favor of the parent-child relationship. In doing so,
it avoided putting the mother and her injured daughter into an incomprehensible catch-22.
Claire’s Boutiques v. Locastro began as a seemingly straightforward negligence case. Amy Locastro took
her 13-year-old daughter, Alexis, to a Claire’s store to have her
ear cartilage pierced. After the piercing, Alexis developed a horrible
infection in the cartilage. Surgery was done on the ear, and Alexis had
to stay in the hospital for about eight days. After the surgery, Alexis
was left with permanent deformities of her ear.
Amy Locastro filed a lawsuit for her daughter which ultimately went to
trial. The jury decided Claire’s was negligent in causing the injury
to Alexis and found about $70,000 in total damages.
This looked like a win for Alexis and her mother. However, at that point
the catch-22 came into play.
Ms. Locastro had signed a waiver provided by Claire’s for her daughter’s
ear piercing. That waiver required her to “indemnify and hold Claire’s
harmless . . . [for] all claims that I or my minor child may make.”
Ms. Locastro probably didn’t have the faintest idea what this legal
jargon meant. But after her apparent victory, she became painfully aware
of its consequences.
Based on this language in the waiver, the trial judge ordered Ms. Locastro
to pay for her daughter’s $70,000 in damages in place of Claire’s.
The judge also decided she had to pay Claire’s the roughly $140,000
in attorney’s fees Claire’s spent defending the case, which
was about twice as much as the verdict itself. Thus, the “victory”
for Ms. Locastro and her daughter resulted in Ms. Locastro being personally
responsible to pay Claire’s about $200,000. She had no insurance
to cover this, which meant the money had to come right out of her pocket.
The scenarios for the Locastros created by this waiver are mind-boggling.
To mention just a few:
1) If Claire’s was found responsible for Alexis Locastro’s
damages, then Claire’s was actually not responsible for those damages.
Only Ms. Locastro, who brought the lawsuit for her daughter, would be
liable for the damages.
2) When Ms. Locastro and her daughter won, they actually lost, because
they were unwittingly suing themselves. And while Ms. Locastro was suing
herself, she was being required to pay the attorney’s fees of Claire’s
attorneys, even though she “won” against those attorneys at trial.
3) By the same token, when Claire’s lost, it actually won. The verdict
requiring Claire’s to pay the mother and daughter actually meant
nothing but financial ruin for Ms. Locastro. The more Claire’s spent
on attorney’s fees, and the more it offended the jury and pumped
up the verdict, the deeper the hole it would create for Ms. Locastro.
4) The trial judge decided Ms. Locastro was not responsible to pay in her
capacity as Alexis’s mother. But she was required to pay in her
“individual” capacity. In other words, Ms. Locastro did not
have to pay $200,000 while she was wearing her mom hat, but did have to
pay $200,000 when she was wearing her individual hat (not surprisingly,
the Court didn’t talk about whether Ms. Locastro had gone through
her life keeping her “mom finances” separate from her “individual
Ironically, Ms. Locastro only signed the waiver
because she was the responsible parent. The first words of the waiver were, “I
am the parent or legal guardian of a minor under 18 years of age.”
Therefore, Ms. Locastro was not responsible as parent for the contract
she signed as parent, but she
was responsible for the contract she signed as parent in her non-parent (individual) capacity.
It would be easy and perhaps amusing to go on listing catch-22s. Fortunately,
it is unnecessary, because an appeals court brought the charade to an
end. It ruled that the waiver requiring Ms. Locastro to financially protect
Claire’s from its negligent acts that harmed her daughter was void.
To uphold the waiver, the Court observed, “would impact a child’s
well-being” and would be “catastrophic to the family’s
In other words, the court recognized the impossible position the Locastros
would be placed in if the waiver were enforced. It came down on the side
of common sense and refused to enforce its terms. The jury’s verdict
in favor of the Locastros was basically reinstated.
Even though the Locastros won on appeal, the case remains a cautionary
tale for consumers for several reasons.
First, the Locastros lost on the waiver issue in the trial court. That
does not mean the trial judge was cruel or trying to be unfair. Generally,
judges are generally required to follow the law as they understand it,
even when they don’t like the outcome. The Locastro trial judge
may have felt duty-bound to enforce the waiver.
Second, the appeals court ruling was a close call: six judges voted to
void the waiver, but five voted to enforce it. The five who voted to enforce
it thought Ms. Locastro should have to live with the bad bargain she had
made for herself and her daughter.
The five dissenters relied on the old principle of “freedom of contract.”
This was the principle employed by the U.S. Supreme Court – quite
infamously – to void laws limiting workplace hours and the minimum
wage about a hundred years ago. Apparently a broad interpretation of that
principle is alive and well in South Florida today.
Third, the win for the Locastros is not guaranteed. The appeals court,
recognizing the importance of the issue it decided, recommended that the
case go to the Florida Supreme Court for a final decision. If the Supreme
Court takes the case, there is no telling how it will rule. In the unfortunate
event that the Locastros lose at that level, Ms. Locastro will owe even
more money for the legal fees Claire’s Boutique incurred for that
stage of the appeal.
We are certainly happy that the appeals court ruled in favor of Ms. Locastro
and her daughter. Again, however, the overriding lesson for consumers
is to be careful what you sign. The case shows how the fine print of a
contract can put you squarely into a catch-22.