Articles Posted in Exculpatory Clause

paintball-1172350In a recent decision, Peterson v. Flare Fittings, Inc., Florida’s Fifth District Court of Appeal examined the liability of various parties for an injury that occurred at a paintball tournament. Although the plaintiff in this case was a competitor in the competition, the injury at issue had nothing to do with flying paint.

The injury at issue in this case occurred on November 8, 2006. On that day, the plaintiff arrived at a Disney-owned facility that was serving as the venue for a paintball event being hosted by Paintball Sports Promotions, LLC. In addition to a paintball tournament, the event hosted a trade show for the advertising and sale of paintball-related goods. Although the plaintiff arrived on November 8, he was not set to compete until the 10th. While venturing through the vendor area on the 8th, the plaintiff alleges that he was struck in the head by a balloon, which he described as 10 feet in diameter and attached to a tree beside a tent that was being operated by either Flare Fittings, Inc. or Crossfire Paintball, Inc. The plaintiff acknowledged that he did not know what caused the balloon, which had been flying about 70 to 100 feet above the ground, to fall, but he claimed that the impact of the balloon knocked him down, dazed him, and left him in pain. The incident was reported to a manager at Disney, and the plaintiff alleges that the manager told him that Disney would cover his medical costs. The plaintiff sought treatment the same day. After his x-ray came back negative, the plaintiff left the hospital with prescriptions.

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photo_1891_20060818In a recent per curium decision, the Supreme Court of Florida made a sweeping change to the law associated with pre-injury exculpatory clauses, and, as a result, left many susceptible to injury without recourse. The decision, Sanislo v. Give Kids The World, Inc., overturned precedential decisions from four of Florida’s five District Courts of Appeal, and held that an exculpatory clause insulating a negligent party from liability may be valid even if the clause does not utilize express language indicating that the other contracting party is releasing his or her right to bring negligence claims.

This case started when a negligence action was brought against Give Kids the World, Inc. (“GKTW”), a non-profit organization that provides complimentary vacations to seriously ill children and their families. While on one of these vacations at the storybook village, the mother of the child was seriously injured while standing on a pneumatic lift designed to lift wheelchairs on to a horse-drawn carriage ride. As part of the application process, the parents signed a waiver releasing GKTW from liability. Specifically, the release provided:

“I/we hereby release [GKTW] […] 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 […] damages or losses […] physical injury of any kind […] I/we further agree to hold harmless and to release [GKTW] from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries ….”

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SONY DSCWith a seemingly endless coastline, Florida is a haven for water-based recreational activities. As the Third District Court of Appeal noted at the conclusion of its recent decision in Diodato v. Islamorada Asset Management, Inc., many Floridians and tourists in the state commonly enjoy recreational activities such as jet-skiing, para-sailing, and scuba diving. Although the vast majority of those who engage in these activities do so without incurring any injury, they remain hazardous activities, and participation does come with some degree of  risk. In light of the attendant dangers posed by these and other forms of recreation, virtually every business in this field requires customers to sign contracts containing provisions commonly known as exculpatory clauses, which state that the customer assumes the risk associated with the activity. This practice is at the center of the controversy in Diodato, which involved the unfortunate drowning of an Arizonan woman during a deep-water wreck scuba excursion off the Florida Keys.

The aforementioned drowning occurred on April 15, 2010, although this was not the decedent’s first time diving. In fact, she had obtained PADI certification in Arizona and had previously gone on several other dives with the principal defendant in this lawsuit, Key Dives, an Islamorada-based recreational scuba diving company. The fatal dive, however, was an advanced deep-water wreck dive, which was unlike the open water reef dives she had previously done with Key Dives instructors. It is common practice at Key Dives for customers to sign a liability release prior to each dive. However, on this day of this dive, the decedent arrived late to the dock and was not required to sign a waiver. After submerging about 10 feet, the decedent signaled to one of the instructors that she would like to surface. The instructor followed her up but did not help her back on board the boat. While trying to board the boat, the decedent lost hold of the boat’s granny line and drifted away. In response, the captain signaled an alarm, and after a brief search, the decedent was found floating, but she had drowned.

Following the incident, the estate of the decedent brought a wrongful death action against Key Dives and several of its employees and agents. Although the decedent had not signed a liability waiver on the day of that particular dive, the defendants argued that other liability waivers signed by the decedent in connection with other Key Dives diving events covered the incident at hand and shielded the company from liability. Specifically, in August 2009, the decedent signed a liability waiver before a series of six open-water reef dives and initialed a provision on the contract that stated that the release was valid for one year from the date it was signed. In addition, the day before the deep-water dive, the defendant went on an open-water reef dive that was being used as preparation for the upcoming advanced dive and again signed a liability release. This release was identical to the one signed in August of the year before, but the decedent on this occasion did not initial the one-year provision. Although Key Dives intended for the decedent to sign a more thorough release form on the day of the fatal dive that covered particularities of the deep-water excursion, the decedent did not sign this release, since she, as mentioned above, arrived late, and the crew did not wish to delay other diving customers. Following discovery, the trial court granted summary judgment in favor of the defendants and held that the August 2009 and April 2010 releases covered the fatal diving event at issue, and, accordingly, the decedent had released Key Dives and its employees from liability.

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