Question 1

I. General Considerations

Accepted Answer

“An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury.” Brooks v. Paul, 219 So.3d 886 (4th DCA 2017).
Where agreement is drafted by defendant and passively accepted by plaintiff, it will be strictly construed against defendant. O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982) (fn. 4); Restatement of Torts, 2nd, § 496B.
Use of exculpatory clauses to absolve a party from liability for its own negligence is strongly disfavored by the courts, and such clauses will be strictly construed against party seeking to avoid liability. Gillette v. All Pro Sports, 135 So.3d 369 (5th DCA 2014); Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (3rd DCA 1998); Covert v. S. Florida Stadium Corp., 762 So.2d 938 (3rd DCA 2000); Cain v. Banka, 932 So.2d 575 (5th DCA 2006); Murphy v. YMCA, 974 So.2d 565 (2nd DCA 2008); Tatman v. Space Coast Kennel Club, 27 So.3d 108 (5th DCA 2009); Peterson v. Flare Fittings, 177 So.3d 651 (5th DCA 2015); Brooks v. Paul, 219 So.3d 886 (4th DCA 2017); Fresnedo v. Porky’s Gym, 271 So.3d 1185 (3rd DCA 2019).
“Exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Brooks v. Paul, 219 So.3d 886 (4th DCA 2017); Sanislo v. Give Kids the World, 157 So.3d 256 (2015); Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (5th DCA 2008); Tatman v. Space Coast Kennel Club, 27 So.3d 108 (5th DCA 2009); Peterson v. Flare Fittings, 177 So.3d 651 (5th DCA 2015).
“Nevertheless, because of the countervailing policy that favors the enforcement of contracts as a general proposition, unambiguous exculpatory provisions are enforceable unless they contravene public policy.” Loewe v. Seagate Homes, Inc., 987 So.2d 758 (5th DCA 2008); Sanislo v. Give Kids the World, 157 So.3d 256 (2015).
Court’s basic objective in interpreting a contract is to give effect to the parties’ intent. Sanislo v. Give Kids the World, 157 So.3d 256 (2015).
Exculpatory clause that relieves party of liability for gross negligence contravenes public policy. Harrell v. BMS Partners, LLC, Case No. 4D22-121 (Fla. 4th DCA 2022)

Question 2

II. Standard of Review

Accepted Answer

Standard of review for trial court’s determination that release is effective to bar a negligence claim is de novo. Tatman v. Space Coast Kennel Club, 27 So.3d 108 (5th DCA 2009); Sanislo v. Give Kids the World, 157 So.3d 256 (2015).

Question 3

III. Requirements for Enforceability

Accepted Answer

Language must be clear and unambiguous.

“It is settled law that a pre-incident release is not effective to preclude an action based on the releasee’s subsequent negligence unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts.” Krathen v. School Board of Monroe County, 972 So.2d 887 (3rd DCA 2007); Witt v. Dolphin Research Ctr., Inc., 582 So.2d 27 (3rd DCA 1991); Bender v. Caregivers of America, Inc., 42 So.3d 893 (4th DCA 2010).
“Exculpatory clauses ‘are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.” Brooks v. Paul, 219 So.3d 886 (4th DCA 2017); Diodato v. Islamorada Asset Mgmt., 138 So.3d 513 (3rd DCA 2014); Sanislo v. Give Kids the World, 157 So.3d 256 (2015); Gillette v. All Pro Sports, 135 So.3d 369 (5th DCA 2014); Hackett v. Grand Seas Resort, 93 So.3d 759 (5th DCA 2012); Hinely v. Fla. Motorcycle Training, Inc., 70 So.3d 620 (1st DCA 2011); Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (3rd DCA 1998); Covert v. S. Florida Stadium Corp., 762 So.2d 938 (3rd DCA 2000); Cain v. Banka, 932 So.2d 575 (5th DCA 2006); Murphy v. YMCA, 974 So.2d 565 (2nd DCA 2008); Rose v. ADT Security Services, Inc., 989 So.2d 1244 (1st DCA 2008); Tatman v. Space Coast Kennel Club, 27 So.3d 108 (5th DCA 2009); Peterson v. Flare Fittings, 177 So.3d 651 (5th DCA 2015).
Release need not list each possible manner in which the releaser could be injured in order to be effective. Give Kids the World, Inc. v. Sanislo, 98 So.3d 759 (5th DCA 2012).
All provisions must be read together to determine if overall release is clear and unambiguous. If one provision is clear, but another provision creates confusion or ambiguity, the release is not enforceable. Fresnedo v. Porky’s Gym, 271 So.3d 1185 (3rd DCA 2019).

B.Intent to limit liability must be expressed in clear and unequivocal terms.

Exculpatory clauses are enforceable, but are looked upon with disfavor, and any attempt to limit one’s liability for his own negligence will not be inferred unless such intention is expressed in clear and unequivocal terms. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982); Goyings v. Jack and Ruth Eckerd Foundation, 403 So.2d 1144 (2nd DCA 1981); DeBoer v. Fla. Offroaders Driver’s Ass’n, Inc., 622 So.2d 1134 (5th DCA 1993); Shaw v. Premier Health and Fitness Center, Inc., 937 So.2d 1204 (1st DCA 2006); Murphy v. YMCA, 974 So.2d 565 (2nd DCA 2008).
 Exculpatory clauses “are strictly construed against the party seeking to be relieved of liability.” Gillette v. All Pro Sports, 135 So.3d 369 (5th DCA 2014).
 If waiver is intended to limit liability for present and future events or activities, it must state so clearly and specifically. Diodato v. Islamorada Asset Mgmt., 138 So.3d 513 (3rd DCA 2014); Cain v. Banka, 932 So.2d 575 (5th DCA 2006).

C. Waiver must clearly state that it releases defendant from liability.

Word “negligence” required &#8211; An attempt by a defendant to avoid liability for an intentional tort is against public policy; however, exculpatory clauses, while disfavored, may absolve defendant from liability for his own negligence if clause clearly states that it releases the party from liability for his own negligence. Bender v. Caregivers of America, Inc., 42 So.3d 893 (4th DCA 2010) (“an exculpatory agreement must expressly include the term ‘negligence’ to clearly and specifically meet the requirement…to be clear and unequivocal.”); Goyings v. Jack and Ruth Eckerd Foundation, 403 So.2d 1144 (2nd DCA 1981); Levine v. A. Madley Corp., 516 So.2d 1101 (1st DCA 1987); Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (3rd DCA 1998); Murphy v. YMCA, 974 So.2d 565 (2nd DCA 2008). BUT SEE §2-3 BELOW.
 Florida’s 5th DCA historically rejected the need for express language referring to release of the defendant for “negligence” or “negligent” acts. Give Kids the World, Inc. v. Sanislo, 98 So.3d 759 (5th DCA 2012); Cain v. Banka, 932 So.2d 575 (5th DCA 2006); Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (5th DCA 1998), disapproved of by Kirton v. Fields, 997 So.2d 349 (2008); Hardage Enterprises, Inc. v. Fidesys Corporation, 570 So.2d 436 (5th DCA 1990). Although specific words are not required, “better practice is probably to use the words, ‘negligent’ or ‘negligence’ in drafting an exculpatory clause.” Hackett v. Grand Seas Resort, 93 So.3d 378 (5th DCA 2012); but see Gillette v. All Pro Sports, 135 So.3d 369 (5th DCA 2014) (release that does not expressly state that it includes defendant’s own negligence is not clear and therefore is not enforceable).
 Word “negligence” not required &#8211; Fla. Supreme Court sided with Fla. 5th DCA and disapproved decisions of other 4 DCA’s, by holding that failure of release to contain express language releasing defendant from his own negligence does not render exculpatory clause ambiguous and ineffective. Sanislo v. Give Kids the World, 157 So.3d 256 (2015) (“it may be better practice to expressly refer to ‘negligence’ or ‘negligent acts’ in an exculpatory clause’, but no such magic words are required)(opinion also provides detailed review of cases from other states).

D. Bargaining power of parties must be substantially equal. 
“Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position.” Give Kids the World, Inc. v. Sanislo, 98 So.3d 759 (5th DCA 2012).  However, bargaining power of parties is not considered except in public function situations. Id. Also see Section VIII(A) below.

Question 4

IV. Additional Considerations

Accepted Answer

Exculpatory clause is more likely to be upheld if it provides plaintiff with option to purchase insurance or pay additional fee to cover certain risks, claims, losses or damages. Valhal Corp. v. Sullivan Associates, Inc., 44 F.3d 195 (3rd Cir. 1995); Fla. Power & Light v. Mid-Valley, Inc., 763 F.2d 1316 (11th Cir. 1985); L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (4th DCA 1980).
Although not required, exculpatory clause written in larger font, bold print, capital letters, different color, or otherwise made more conspicuous is more likely to be enforced if wording of clause is sufficiently clear and unambiguous. 
Separate release should be signed by each person, all language must be visible to person signing release, and signature should be dated and witnessed. See Parkham v. East Bay Raceway, 442 So.2d 399 (2nd DCA 1983).
Implied warranty can be disclaimed if the agreement is clear and unambiguous. Hesson v. Walmsley Construction Co., 422 So.2d 943 (2nd DCA 1982).
In commercial contract, indemnity provision will be upheld when contract involves strictly private concerns, does not affect the public interest, provides for mandatory purchase of insurance as a method to allocate risk, and specifically allocates responsibility between contracting parties for injuries sustained by members of the public while on the property. J.C. Penney Company, Inc. v. Dillard’s, Inc., 75 So.3d 795 (4th DCA 2011).
When waiver includes valid arbitration provision, validity of exculpatory clause must be considered first by arbitrator. Flying Panda v. Rutherford, 49 FLW D445 (5th DCA 2024)

Question 5

V. Releases Signed by Parent/Guardian

Accepted Answer

Parents generally have inherent authority to make decisions regarding the welfare of their children without interference by third parties, including government, unless significant harm to child is threatened by parent’s decisions. Kirton v. Fields, 997 So.2d 349 (2008); Von Eiff v. Azicri, 720 So.2d 510 (1998); State v. J.P., 907 So.2d 1101 (2004); Tallahassee Memorial Regional Hospital Center, Inc. v. Peterson, 920 So.2d 75 (1st DCA 2006).This parental authority derives from liberty interest contained in 14th amendment to U.S. Constitution and right to privacy contained in article I, section 23 of Florida Constitution. Global Travel Marketing, Inc. v. Shea, 908 So.2d 392 (2005).
Decision to allow minor to participate in activity is properly left to the parents or guardian, and some activities by their very nature involve the acceptance of some degree of inherent risk. However, decision to allow child to participate in activity is separate from decision to waive child’s right to seek redress for injury resulting from negligence of defendant. Kirton v. Fields, 997 So.2d 349 (2008).
Parental waivers are supported by public policy when they relate to medical care, insurance or participation in school or community activities. Kirton v. Fields, 997 So.2d 349 (2008); Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (5th DCA 2008).
Parental release causes forfeiture of minor’s property right to seek legal redress for injury; property right is personal to the minor and cannot be waived by parent absent a basis in common law or statute. Kirton v. Fields, 997 So.2d 349 (2008).
Pre-injury release executed by parent on behalf of minor is generally unenforceable. Kirton v. Fields, 997 So.2d 349 (2008), disapproving decision in Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (5th DCA 1998), But see §VI(B) below; Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (5th DCA 2008). Likewise, parental indemnification agreement, in which parent agrees to indemnify third party for any injury the third party causes to child, violates public policy. Claire’s Boutiques, Inc. v. Locastro, 85 So.3d 1192 (4th DCA 2012) (finding such an agreement void and unenforceable). 
Parental waiver that relates to “commonplace child oriented community or school supported activities” is generally enforceable.” Gonzalez v. City of Coral Gables, 871 So.2d 1067 (3rd DCA 2004); Krathen v. School Board of Monroe County, 972 So.2d 887 (3rd DCA 2007); Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (5th DCA 2008); However, waivers related to commercial activities are generally unenforceable. In re Royal Caribbean Cruises, Ltd., 459 F.Supp.2d 1275 (S.D. Fla. 2006); In re Royal Caribbean Cruises, Ltd., 403 F.Supp.2d 1168 (S.D. Fla. 2005); Kirton v. Fields, 997 So.2d 349 (2008). See discussion in Section VI below.
Arbitration agreement executed by parent on behalf of child is enforceable, because unlike pre-injury waivers, it merely changes the forum for resolving the dispute rather than completely extinguishing the claim. Global Travel Marketing, Inc. v. Shea, 908 So.2d 392 (2005).
“If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.” A commercial business can insure itself against risk of injury to child, but child is not able to insure himself against risk of injury. Kirton v. Fields, 997 So.2d 349 (2008).
Parent may not contract away child’s right to receive child support. Robinson v. State, 473 So.2d 228 (Fla. 5th DCA 1985).
If your state requires court approval of settlement of minor’s claim by statute, argue that pre-injury waiver of minor’s claim violates public policy as determined by legislature. Child is in greater need of protection of court pre-injury than post-injury.

Question 6

VI. Releases Signed by Child

Accepted Answer

Contracts entered into by minors are voidable, but minor can be estopped from avoiding contract if he induced other party to enter contract by fraud. Off the Wall v. Gabbai, 301 So.3d 281 (4th DCA 2020).
Defendant seeking to enforce waiver has no duty to investigate potential fraud or validity of signature prior to entering into contract. Off the Wall v. Gabbai, 301 So.3d 281 (4th DCA 2020).
When child fraudulently signs waiver on behalf of parent, child cannot avoid the waiver by claiming he was a minor; infancy defense is unavailable to him. Off the Wall v. Gabbai,301 So.3d 281 (4th DCA 2020).

Question 7

VII. Statutory Authority

Accepted Answer

Motorsports Activities (Fla.Stat. §549.09) &#8211; A closed-course motor sport facility is authorized to condition admission to non-spectators on the signing of a release limiting liability of the track operator.

Release may be signed by more than one person if release form appears on each page or side of page that is signed, and it must be printed in 8 point type or larger.
 If minor is participating in motorsports event (defined in F.S. 549.10 as “a motorsports race and its ancillary activities that have been sanctioned by a sanctioning body”), release must comply with F.S. 549.09 and is valid to same extent provided for other non-spectators under this section.
 If minor is participating in activity at closed-course motorsport facility, other than motorsports event as defined in Fla.Stat. 549.10, release must comply with Fla.Stat. 744.301(3) (see Sec. B. below) and is valid only to the extent, and subject to the presumptions, provided in that subsection.

Parental Waivers (F.S. 744.301(3)) &#8211; This statute was passed in response to Kirton v. Fields, 997 So.2d 349 (2008). Natural guardians may waive in advance any claim their minor child may have against a commercial activity provider for injury, death or property damage resulting from an inherent risk in the activity. “Inherent risk” means “those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner.” Term includes failure to warn of inherent risk, and risk that minor or other participant may negligently or intentionally cause injury or death to minor. Release must, at a minimum, include statement required by statute in uppercase type at least 5 points larger than, and clearly distinguishable from, the rest of the text of the release.

If release complies with these requirements and waives no more than allowed under this subsection, there is rebuttable presumption that  release is valid and that any injury or damage to minor arose from inherent risk.
 To rebut presumption that release is valid, claimant must prove by preponderance of evidence that release does not comply with this subsection.
 To rebut presumption that injury or damage arose from inherent risk of activity, claimant must prove by clear and convincing evidence that conduct, condition or other cause of injury or damage was not inherent risk of activity.
 If presumption under this section is rebutted, liability and compensatory damages must be established by preponderance of evidence.
 This subsection does not limit parents’ ability to release in advance their child’s claim against a noncommercial activity provider.

Equine Activities &#8211; F.S. 773.02 Equine activity sponsor, professional, or other person is not liable for injury to or death of participant resulting from inherent risks of equine activities, except as provided in s. 773.03.
F.S. 773.03 &#8211; Limitation on liability does not apply if equine activity provider (a) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and it was so faulty as to be totally or partially responsible for the injury;
(b) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, or to determine the ability of the participant to safely manage the particular equine based on the participant’s representation of his or her ability;
(c) Owns, leases, rents, has authorized use of, or is otherwise in lawful possession and control of the land or facilities upon which the participant was injured, and the injury was due totally or in part, to a dangerous latent condition which was known to the equine activity sponsor, equine professional, or person and failed to post warning signs;
(d) Commits an act or omission that a reasonably prudent person would not have done or omitted under the same or similar circumstances or that constitutes willful or wanton disregard for the safety of the participant, which act or omission was a proximate cause of the injury; or
(e) Intentionally injures the participant.
F.S. 773.04 &#8211; Activity sponsor must give written notice to participant “WARNING Under Florida law, an equine activity sponsor or equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.”

Question 8

VIII. Exculpatory Clauses Prohibited

Accepted Answer

Enforcement of a release or waiver prospectively immunizing a defendant from liability for breach of a positive statutory duty designed to protect the well-being of the person executing the release is contrary to public policy and not enforceable. Torres v. Offshore Professional Tour, Inc., 629 So.2d 192 (3rd DCA 1993); John’s Pass Seafood Co. v. Weber, 369 So.2d 616 (2nd DCA 1979); Rose v. ADT Security Services, Inc., 989 So.2d 1244 (1st DCA 2008); Loewe v. Seagate Homes, Inc., 987 So.2d 758 (5th DCA 2008) (party may not contract away its responsibility to comply with a building code when the person with whom the contract is made is one of those whom the code is designed to protect).
Attempt by defendant to avoid liability for an intentional tort is against public policy; Goyings v. Jack and Ruth Eckerd Foundation, 403 So.2d 1144 (2nd DCA 1981); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332 (3rd DCA 1983); Loewe v. Seagate Homes, Inc., 987 So.2d 758 (5th DCA 2008).
In residential rental agreements, landlord cannot limit rights, liabilities or remedies required by law.  Fla.Stat. §83.47.
Exculpatory clause in construction contract or contract for improvement of real property is unenforceable unless it contains monetary limitation and satisfies other statutory requirements, depending on circumstances.  Fla.Stat. §725.06.  Also see Loewe v. Seagate Homes, Inc., 987 So.2d 758 (5th DCA 2008) (“To permit builders of residential homes to absolve themselves from liability for personal injury caused by their negligent acts would undermine the Legislature’s intent to protect the public from unsafe construction practices.”).
Provisions of chapter 718 (Condominiums) may not be waived if waiver will adversely affect rights of unit owners or purpose of the provision being waived.  Fla.Stat. §718.303(2).
Construction liens may not be waived in advance.  Fla.Stat. §713.20(2).
Attorneys may not prospectively limit their liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. Rule 4-1.8(h) Fla. Rules of Professional Conduct.
Common carriers generally may not use exculpatory clauses to limit their liability for their own negligence, except when operating in a private capacity. Russell v. Martin, 88 So.2d 315 (1956). A cruise line’s disclaimer of its responsibilities in its passenger ticket is against public policy. “A sea carrier’s ability to disclaim its responsibilities is not unlimited.” Kornberg v. Carnival, 741 So.2d 1332, 1335 (11th Cir. 1984).  A ship transporting passengers to or from any U.S. port may not disclaim responsibility for injury or death resulting from the negligence or fault of the ship’s owner, servants, or agents. 46 U.S.C.A. §30509; see also Carlisle v. Ulysses Line, 475 So.2d 248 (3rd DCA 1985).
Contractual agreement to shorten time within which legal action must be initiated to a period less than that provided by the applicable statute of limitations is void and unenforceable.  Fla.Stat. §95.03.
Provision in nursing home admission contract waiving resident’s rights is void and unenforceable. Fla.Stat. 400.022(1)(p).
Parent may not contract away child’s right to receive child support. Robinson v. State, 473 So.2d 228 (Fla. 5th DCA 1985).
Release that absolves party of liability for strict product liability is against public policy and is not enforceable. Harrell v. BMS Partners, LLC, Case No. 4D22-121 (Fla. 4th DCA 2022); Boles v. Sun Ergoline, Inc., 223 P.3d 724, 727–28 (Colo. 2010) (“It is enough here that an agreement releasing a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.”); Chi. Steel Rule & Die Fabricators Co. v. ADT Sec. Sys., Inc., 763 N.E.2d 839, 842 (Ill. App. Ct. 2002) (“Illinois courts have held that contractual provisions precluding consumers from bringing strict liability claims for personal injuries violate public policy.”); Westyle v. Look Sports, Inc., 22 Cal. Rptr. 2d 781, 800 (Cal. Ct. App. 1993) (“We conclude that, as a matter of public policy, product suppliers cannot insulate themselves from strict liability in tort for injuries caused by defects in products they place on the market by obtaining a consumer’s signature on an express assumption of risk.”); McGraw-Edison Co. v. Ne. Rural Elec. Membership Corp., 678 N.E.2d 1120, 1125 (Ind. 1997) (disclaimer of strict liability held invalid under Indiana products liability statute); Elite Pros., Inc. v. Carrier Corp., 827 P.2d 1195, 1200–01 (Kan. Ct. App. 1992) (noting that Kansas has adopted the doctrine of strict liability as set out in the Restatement (Second) of Torts § 402A, and concluding “there is no basis for a determination that as a matter of law the printed warranty and disclaimer operates to preclude recovery . . . on the theory of strict liability in tort”). But see Keystone Aeronautics Corp. v. R.J. Enstrom Corp., 499 F.2d 146, 149 (3d Cir. 1974) (“We conclude . . . that Pennsylvania law does permit a freely negotiated and clearly expressed waiver of § 402A between business entities of relatively equal bargaining strength.”); McDermott, Inc. v. Clyde Iron, 979 F.2d 1068, 1076 (5th Cir. 1992) (applying New York law and concluding strict liability can be waived between two sophisticated commercial entities), reversed in part on other grounds by McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994).

Question 9

IX. Public Interest Activities

Accepted Answer

Public interest factor will invalidate exculpatory clause in contract when: (1) it concerns business of type generally suitable for public regulations; (2) party seeking exculpation is engaged in performing service of great public importance, which is often matter of practical necessity for some members of public; (3) party holds himself out as willing to perform the service for any member of public who seeks it; (4) as result of essential nature of service and economic setting of transaction, party seeking exculpation possesses decisive advantage in bargaining strength; (5) in exercising superior bargaining power, party confronts public with standardized adhesion contract of exculpation; (6) and as result of transaction, person or property of purchaser is placed under control of party to be exculpated. Hinely v. Fla. Motorcycle Training, Inc., 70 So.3d 620 (1st DCA 2011); Banfield v. Louis, 589 So.2d 441 (4th DCA 1991).
When particular contract, transaction, or course of dealing is not prohibited under any constitutional provision, statutory provision, or prior judicial decision, it should not be struck down on public policy grounds unless it is clearly injurious to public good or contravenes some established interest of society. Banfield v. Louis, 589 So.2d 441 (4th DCA 1991).

Question 10

X. Assumption of Risk

Accepted Answer

Contractual agreement to assume risk of injury is covered by same principles that apply to other exculpatory clauses. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982).
In order to be enforceable, agreement must unambiguously indicate which risks are being assumed, and will not be interpreted to include losses resulting from defendant’s negligence unless it is clear that the plaintiff so intended. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982).
Affirmative defense of assumption of risk has been merged into defense of comparative negligence, so it will not automatically bar recovery as it is usually question of fact. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982).
Before one expressly assumes risk, it must be shown that the particular risk was known or should have been known and appreciated by the injured person. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982).
Where certain risks are inherent and unavoidable in a particular activity, defendant has no duty to protect plaintiff from those risks; however, if defendant’s actions increase or add new risks not normally inherent in activity, duty arises and defendant may be found negligent. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982).
“[K]nowing and voluntary participation in contact sports constitutes an express assumption of risk ‘essential to protect the other participants from unwarranted liability for injuries due to bodily contact inherent in the sport.’” City of Miami v. Cisneros, 662 So.2d 1272 (3rd DCA 1995); Mazzeo v. City of Sebastian, 550 So.2d 1113 (1989). “The doctrine of express assumption of the risk totally bars recovery when the injured party consented to a known risk.” McNichol v. South Fla. Trotting Center, Inc., 44 So.3d 253 (4th DCA 2010). “Express assumption of the risk includes ‘express contracts not to sue for injury…as well as…where one voluntarily participates in a contact sport.’” Id. “In contrast, implied assumption of the risk includes aberrant conduct in noncontact sports and may not be invoked as a total bar to recovery.” Id.
Although one may implicitly assume risks inherent in sport by participating in the sport, such risks do not include negligent supervision or instruction by the coach or organizers. City of Miami v. Cisneros, 662 So.2d 1272 (3rd DCA 1995).

Question 11

XI. Release Not Enforceable

Accepted Answer

Dad signed release and waiver of liability, assumption of risk, and indemnity agreement to allow 14-year old son to ride ATV at motor sports park.  Child lost control of ATV, was ejected, and died. Summary judgment in favor of defendant was reversed. Kirton v. Fields, 997 So.2d 349 (2008).
Where release waived “any claims or causes of action&#8230;arising out of any injuries” and stated that plaintiff assumed “the risks inherent in horseback riding” and did not specifically limit defendant’s liability for its own negligence, release was too ambiguous and was not enforceable. Case involved injuries suffered by 9-year old boy while horseback riding. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982).
Agreement that “fully release[d]” defendant “in the event of injury, illness or death” was insufficient to insulate defendant from liability when child was injured during camp canoe trip. Goyings v. Jack and Ruth Eckerd Foundation, 403 So.2d 1144 ( 2nd DCA 1981).
In case alleging negligence in administration of polygraph examination, release stated “I hold [defendant] free from all harm, liability or damage to me as a result of the examination…and I hereby remise, release, waive, and forever discharge [defendant]…from any action or cause of action, claim or demand which I have now or may ever have resulting directly or indirectly or remotely from or by said examinations…”; release did not unequivocally inform plaintiff that she was releasing defendant from its own negligence. Levine v. A. Madley Corp., 516 So.2d 1101 (1st DCA 1987).
In claim against marina for property damage to boats, release was ambiguous and unenforceable where one provision waived liability for any loss, but another provision waived liability for any actions except willful gross negligence. Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (3rd DCA 1998).
In claim against stadium owner for injuries suffered by plaintiff after being attacked by drunk fans, release was ambiguous and unenforceable where one provision waived liability for any claims, but another provision waived liability for claims resulting from intentional misconduct; release also stated that it did not provide plaintiff with any greater or lesser rights than those afforded to other ticket holders, and other ticket holders were not bound by same liability limitation. Covert v. S. Fla. Stadium Corp., 762 So.2d 938 (3rd DCA 2000).
Although exculpatory clause which absolves defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” is sufficient to include plaintiff’s negligence claim and is otherwise enforceable, release in this case was not enforceable because it was signed two years before event that caused injury, did not contain period of enforceability or specifically state that it applied to future events, and did not inform plaintiff that he was waiving claims for all future visits to the track. Cain v. Banka, 932 So.2d 575 (5th DCA 2006).
Upon joining YMCA as member, plaintiff signed release releasing YMCA “from all liability for any injury”, including claims based on YMCA’s own negligence, “even when every reasonable precaution is taken”. Language was confusing, was not clear and unequivocal, and was therefore unenforceable. Murphy v. YMCA, 974 So.2d 565 (2nd DCA 2008)
Mother signed exculpatory contract on behalf of 5-year old daughter, who was subsequently injured in wakeboarding accident at defendant’s water sports park. Court held that waiver was unenforceable based on public policy considerations, even though waiver was clear and unambiguous. Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (5th DCA 2008).
Contract for sale of residential home by home builder contained exculpatory clause releasing builder from all liability for its own negligence, gross negligence, strict liability or intentional conduct. Clause was found to be unenforceable. Loewe v. Seagate Homes, Inc., 987 So.2d 758 (5th DCA 2008).
Release which stated “I agree to not hold SCKC or Brevard County Parks & Rec Dept. liable for any accident or injury”, fails to define whose injuries are covered or what types of accidents are covered, and is therefore ambiguous and unenforceable. Tatman v. Space Coast Kennel Club, 27 So.3d 108 (5th DCA 2009).
Release that released defendant from “any and all liability resulting from the use of the Aide’s vehicle for Client transportation” was invalid because it did not specifically include the term “negligence”.  Bender v. Caregivers of America, 42 So.3d 893 (4th DCA 2010).
Mother took her 13-year old daughter to get her ear pierced, which resulted in infection requiring hospitalization and surgery, leaving child with disfigured ear. Prior to piercing, mother signed indemnity agreement releasing all claims she or her daughter may have against Claire’s as result of piercing, and agreeing to indemnify and hold Claire’s harmless for any injuries to daughter, even if caused by negligence of Claire’s or its employees. Agreement was held to be against public policy and was void and unenforceable. Claire’s Boutiques, Inc. v. Locastro, 85 So.3d 1192 (4th DCA 2012).
Plaintiff was injured when chair in which he was sitting at condo collapsed. He signed release before occupying condo that said “Management reserves the right to refuse service to anyone, and will not be responsible for accidents or injury to guest or for the loss of money, jewelry or valuables of any kind.” Court found language to be ambiguous and unenforceable. Hackett v. Grand Seas Resort, 93 So.3d 378 (5th DCA 2012).
Plaintiff was injured in go-kart accident at go-kart track. Defendant moved to dismiss based on pre-injury release signed by plaintiff. Release did not expressly state that it includes defendant’s own negligence. Court held that when considered in its totality, release was not clear that defendant’s negligence was included in scope of release. Release held to be unenforceable. Gillette v. All Pro Sports, 135 So.3d 369 (5th DCA 2014).
Plaintiff drowned while scuba diving in ocean near Islamorada. Defendant moved for summary judgment based on releases signed by plaintiff before prior dive trips, which released defendants from liability for “this activity”. Court held it was not clear if release pertained to just one dive trip or to future dive trips, and it reversed summary judgment. Diodato v. Islamorada Asset Mgmt., 138 So.3d 513 (3rd DCA 2014).
Medical patient signed release prior to seeing doctor agreeing “not to sue&#8230;for any reason.” Court found release ambiguous and unenforceable. Brooks v. Paul, 219 So.3d 886 (4th DCA 2017).
Release that absolved lessor of all liability, while limiting lessor’s “sole liability…to the exercise of ordinary care” was ambiguous and unenforceable. Obsessions in Time v. Jewelry Exchange Venture, 247 So.3d 50 (3rd DCA 2018).
Release for injuries “caused by the negligence or gross negligence of [defendant]” does not waive claims for strict liability. Harrell v. BMS Partners, LLC, Case No. 4D22-121 (Fla. 4th DCA 2022)

Question 12

XII. Release Enforceable

Accepted Answer

Release that released school board from “any injury or claim resulting from . . . athletic participation” was valid to insulate school board from liability for negligence claims, where high school cheerleader was injured during practice in school gym. Krathen v. School Board of Monroe County, 972 So.2d 887 (3rd DCA 2007).
Hold harmless agreement signed by parent to allow 15-year old daughter to participate in Fire Rescue Explorer Program for school credit was valid to eliminate negligence claim when girl was injured at fire station, as the program fell within category of school supported activities for which parent may waive child’s litigation rights. Gonzalez v. City of Coral Gables, 871 So.2d 1067 (3rd DCA 2004).
Release waived “all liabilities, claims, actions, damages, costs or expenses…arising out of or in any way connected with my participation in this event&#8230; including injuries which may be suffered by me&#8230;includ[ing] any claims based on negligence, action or inaction of any of the above parties.” Banfield v. Louis, 589 So.2d 441 (4th DCA 1991).
Race car driver signed liability waiver prior to race in which he was killed, which waived “all liability…for any and all loss or damage, and any claim or demands therefore on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise”; waiver further stated that plaintiff “assumes full responsibility for and risk of bodily injury, death or property damage due to the negligence of releasees or otherwise” and “expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage”. Theis v. J&J Racing Promotions, 571 So.2d 92 (2nd DCA 1990).
Release that releases defendant from “any injury or claim resulting from…athletic participation” is sufficient to waive claims for negligence, as it clearly and unambiguously indicates intent to waive any claims for negligence. Krathen v. School Board of Monroe County, 972 So.2d 887 (3rd DCA 2007).
Release designated active racetrack as restricted area and warned plaintiff of risks of entering restricted area and that if she did so, she did so at her own risk and that defendant would not be liable for any resulting injury; reasonable person would have heeded warning to stay off track. DeBoer v. Florida Offroaders Driver’s Ass’n, Inc., 622 So.2d 1134 (5th DCA 1993).
Liability waiver in gym membership agreement stated “Premier shall not be liable for any injuries or any damage to any member or guest, &#8230; or be subject to any claim, demand, injury or damages, whatsoever, including without limitation, those damages from acts of passive or active negligence on the part of Premier….Member&#8230;does hereby expressly forever release and discharge Premier&#8230;from all such claims, demands, injuries, damages, actions or causes of action…. Member acknowledges that he/she has carefully read this paragraph and fully understands that this is a waiver and release of liability.” Shaw v. Premier Health and Fitness Center, Inc., 937 So.2d 1204 (1st DCA 2006).
Release was clear and unambiguous, and therefore enforceable, where it stated that plaintiff “understands and agrees” that none of the “Released Parties&#8230;may be held liable or responsible in any way for any injury, death, or other damages to [decedent] or my family, heirs, or assigns that may occur as a result of my participation in this diving class or as the result of the negligence of any party, including the Released Parties, whether passive or active.” Borden v. Phillips, 752 So.2d 69 (1st DCA 2000).
Exculpatory clause in contract to install burglar alarm relieved installer of liability for negligence; intention of installer to be relieved of liability for its own negligence was clear and unequivocal. Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So.2d 332 (3rd DCA 1983).
Waiver of liability in application for motorcycle training course was clear and unambiguous, where it clearly set forth risks and specifically waived liability for defendant’s own negligence. Hinely v. Fla. Motorcycle Training, Inc., 70 So.3d 620 (1st DCA 2011).
Exculpatory clause in commercial lease agreement is enforceable, where parties were sophisticated national retailers occupying equal bargaining positions.  Lease agreement contained exculpatory clause in which both parties agreed to release each other from liability for any property damage covered by insurance. J.C. Penney Company, Inc. v. Dillard’s, Inc., 75 So.3d 795 (4th DCA 2011).
Mother was injured when wheelchair lift on which she was standing collapsed, while at resort village with her ill daughter. Prior to stay at resort, plaintiff signed release that released defendant “from any liability whatsoever” and “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”. Court held language to be clear and unambiguous, and sufficient to waive all claims. Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (2015).
Residential lease agreement stated tenant inspected property, was satisfied with condition, accepts property “as-is”, and waives all claims against landlord; tenant injured when she sat on fence and fence collapsed. Casasanta v. Sailshare 296, 274 So.3d 418 (1st DCA 2019).
Waiver signed by plaintiff as condition of employment that waived all rights to pursue a claim against his employer’s customers for injuries covered by the workers compensation statutes was valid and enforceable. Merlien v. JM Family Ent., 301 So.3d 1 (4th DCA 2020).
Waiver signed by parent and student to play high school soccer was enforceable to bar claim against school board for injury during soccer game. Elalouf v. School Board of Broward Co.,  311 So.3d 863 (4th DCA 2021).
Release contained in residential lease agreement that waives liability for all claims is not valid to waive plaintiff’s claim for intentional tort, but is enforceable as to claim for negligence. Fuentes v. Owen, 310 So.2d 458 (3rd DCA 1975).

Question 13

XIII. Enforceability Checklist

Accepted Answer

Although there is no specific formula for determining whether a pre-incident release or liability waiver will be enforced, and the enforceability of each release depends on many factors and is considered on a case-by-case basis, the following questions should be asked to help assess the enforceability of the release.  The questions are taken from a review of the pertinent cases.  The more questions that are answered “yes”, the more likely that the court will enforce the release:

Is the exculpatory language clear and unambiguous, such that a reasonable person of ordinary intelligence will understand what it means?
Does the release clearly and specifically state that it releases the defendant from all liability for its own negligence?
Does the release specifically list the risks or dangers associated with the activity, and state that the plaintiff is accepting or assuming those risks?
Is the release consistent and clear, without conflicting terms or provisions?
Is the release limited to waiving liability only for the defendant’s negligence and not for the defendant’s gross negligence or intentional conduct?
Does release give plaintiff an option to purchase insurance or pay additional fee to cover loss, injury or damage?
Is exculpatory language in larger font than other provisions of agreement?
Is exculpatory language in different color than other provisions of agreement?
Is the release signed by the plaintiff and dated?
Is the release signed by a witness?
If the release is intended to cover multiple events, activities or visits, does it contain an expiration date or specify the time period for which it is effective?
Is the release signed by the injured person, and not by someone on his/her behalf or by multiple parties?
If release is signed by parent/guardian on behalf of child, does it pertain to common community or school activities?
Does release permit arbitration or some other alternative for making claim or resolving dispute, rather than completely eliminating the ability to make a claim?
Is the party seeking to avoid liability in reliance on a release someone other than a common carrier?
Does the release exclude from its liability limitation any liability for the defendant’s failure to comply with any applicable statute, code or ordinance?
Is the activity that is the subject of the release something other than one of great public importance, such as providing public utilities, public services, or activities performed by government contractors?
Does the release specifically list the rights and remedies that are being waived?
Does the release specifically identify the party/parties being released?
Does the release contain the words “neglect” or “negligence”?
Is the exculpatory clause initialed by the person signing the waiver document?
If the release pertains to a minor in a commercial activity, does it comply with the requirements of F.S. 744.301(3)?
If the release pertains to a minor in a motorsports event or activity, does it comply with the requirements of F.S. 549.09?

Pre-Injury Liability Releases/Waivers in Florida

Quick Links

Contact Us

Practice Areas

Disclaimer

This page is protected.

Other Outlines

Get a FREE
Case Evaluation

Pre-Injury Liability Releases/Waivers in Florida

Quick Links

This page is protected.

Other Outlines

Get a FREE Case Evaluation

Get a FREE
Case Evaluation