In 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 ….”
At the trial level, GKTW raised the contractual release as an affirmative defense, but the trial court denied GKTW’s motion for summary judgment. The case went to trial, after which a jury found in favor of the plaintiff. On appeal, the Fifth District Court of Appeal reversed, holding that the release was valid and barred the plaintiff’s claims, although it lacked express language related to negligence and negligent acts. The Fifth District held that as long as the exculpatory clause is clear and understandable, the release need not have express language to be deemed valid. This decision was in direct conflict with binding decisions from the other four District Courts of Appeal, which had all held that a release requires express language to effectively bar a negligence action.
Although the weight of doctrine seemed to point toward holding that express language is necessary to make a pre-injury liability release valid, the Supreme Court held otherwise. The court engaged in a through review of Florida precedent related to indemnification clauses, which the plaintiff argued supported her position, and then looked to out-of-state holdings from other state supreme courts. Upon completing this review, the court held that as long as the contractual language is otherwise clear and unambiguous, express language specifically indicating negligence or negligent acts is unnecessary. Returning to the contract at issue, the court held that the contract clearly indicated the intent to release GKTW from liability. The court did note that this clause could not, as a matter of law, release a party from liability for intentional torts and that pre-injury waivers are generally disfavored, so the language must still “unambiguously [demonstrate] a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away.”
Although exculpatory language must still be “unambiguous,” express language provides protective clarity so that a court can be certain a party understood he or she was releasing his or her rights to bring this particular sort of claim. Indeed, the release at issue in this case not only waived liability with respect to the parents but also with respect to the children. Exculpatory provisions are incredibly common, and many people who have been injured in recreational activities are often unaware that they have contracted away their right to recover for their injuries. Accordingly, someone who has been injured in a possible act of negligence should consult an attorney with experience combating pre-injury contractual releases. The South Florida injury attorneys at Frankl & Kominsky have considerable experience with this area of the law and can provide the zealous representation your possible case may require. If you’ve recently been injured and are considering your options, feel free to contact us for a complimentary case evaluation.