International Practice Newsletter

International Practice: 2015

Safety Last: Exculpatory Clauses in Florida

Barry Friedman, Esq.

 

Florida, is one of the top travel destinations in the world with  its year round tropical weather, beaches, numerous theme parks and recreational activities. Those ver:iues offering recreational activities are more frequently requiring participants to sign waivers or  releases  before  participating  in the activity. The waivers/releases are sought  to  relieve  the  venue  and their agents of liability for all acts of negligence, resulting in damage or injury to the participants. The enforceability  of these  waivers/release forms has been hotly contested for years an·d once again became an issue before the Florida Supreme Court.

 

Iin aa 4-3 split decision, the Florida Supreme Court recently (February 12, 2015) ruled that the absence of the words "negligence" or "negligent acts" in a release/waiver of liability does not render  the  release/waiver ineffective. Sanislo v.  Give Kids The World,I  nc., 157 So. 3d 256 (2015).

 

The defendant, a non-profit charitable organization was in the business of providing story book vacations to seriously ill children and their families at its resort village. The parents while at the village, signed an application for one of these vacations for their seriously ill child which included language releasing Give Kids The World,Inc. from any liability for any potential cause of action. The child's wish was granted and when  the  families arrived at the Resort, the parents signed a Release containing the following language:

"I/we  hereby  release  Give  Kids  The  World, Inc.  and  all  of  its  agents, officers, directors, servants and employees from any liability whatsoever in connection  with the preparation,  execution and fulfillment of said wish, on  behalf  of  ourselves,   the  above  named   wish  child  and  all  other participants.  The scope of this Release shall include, but not limited to, damages     or    losses     or    injuries     encountered     in    connection   with transportation, food, lodging, medical  concerns (physical and emotional),

entertainment, photographs and physical injury of any kind ...."

"I/ we furher agree to hold harmless and to release Give Kids the World, Inc. from any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/ or damages which may happen to me/ us ...."

Subsequently the child's parent was injured and suit was initiated.

Exculpatory clauses are generally disfavored in Florida and  in  most other states, as a matter of public policy, inasmuch as the obligation to use due care shifts the risk of injury to the party who is least equipped to take the necessary precautions to avoid injury and bear the risk of loss. However, countervailing policy in upholding contracts favors enforcement of such clauses so long as the language contained in the release/waiver is clear, unambiguous and capable of being understood by any ordinary and knowledgeable person who will understand what they are contracting away.

The majority for the court reasoned that the word "liability" as used in the release was clear, unequivocal and was capable of being understood by any reasonable person and more particularly, the claimants who knowingly agreed to release Give Kids the World,Inc.. Further,  the majority explained that it is generally  understood  that  liability  means the same thing as a release of all negligent acts without express language regarding negligent or negligent acts. Therefore, the language met the clear an.d unambiguous threshold favoring enforcement of the contractual waiver of all claims for damages resulting from negligence.

This decision puts another chink in the armor of Consumer Protection Laws, by limiting the ability of consumers who feel compelled to sign these types of waivers with or without the ability to appreciate all of the risks or consequences of signing such a release. However, this decision is not intended to declare general release language per se effective to bar negligence claims. Unfortunately, carefully crafted releases  will have a chilling effect on negligence claims for damages. This ruling though, was narrowly construed to address the clarity of the language used to put the releaser on notice of what they are· contracting away. All issues concerning the notice, manner and circumstances upon which the release/ waiver was presented  to the  leasor and  whether  or  not the language was clearly visible and not buried within the document or made part of another document, so as to confuse the releaser as to what they are signing still remain open. It should also be noted that under Florida Law, a parent may not waive a child's claim for negligence resulting in injury.

We can only hope in the  future, that upon revisiting the exculpatory clause issues, that a new majority will see their way clear to recognize the unequal bargaining power between the general public and the businesses seeking releases for their negligence resulting in injury and declare all consumer exculpatory clauses void as. . a matter of public policy without any overriding Contract Laws.

 

PREPARED BY:     BARRY S. FRIEDMAN, ESQ.

TH E FRIEDMAN LAW FIRM, P.A.

THE SANCTUARY CENTRE

4800 NORTH FEDERAL HIGHWAY SUITE   100-D

BOCA RATON, FL 33431 00-1-561-394-8235   (Tel)

00-1-561-394-8316 (Fax)

bfriedman@thefriedman-lawfirm.com www.thefriedman-lawfirm.com