The Florida Supreme Court recently ruled in favor of the decision by the 5th District Court of Appeals to uphold the validity of a release of liability waiver signed by a plaintiff who was later injured.
In so doing, the state high court cast aside the rulings of the four other appellate courts in the state, which had decided in other cases to make it tougher for defendants to use waivers as a defense.
This is not great news for injured plaintiffs. However, it does not mean liability waivers will now totally absolve individuals or companies from negligence or that these waivers should go unchallenged.
Still, it may be a tougher hurdle to overcome in the wake of the high court’s ruling in Sanislo v. Give Kids The World, Inc.
The case started with an offer extended by a non-profit organization that offers to send very sick children and their families on a free Florida vacation at a resort in Kissimmee. As part of the application process, families sign a waiver of liability, and they are required to again sign a similar waiver of liability upon their arrival.
Plaintiffs’ application to attend a free vacation with their sick child was accepted by defendant, and both waivers were signed. The waiver released the company and all agents, servants, directors, officers and employees from “any liability whatsoever” might result from injuries sustained in connection with transportation, food, lodging, medical concerns, entertainment, photographs or physical injury of any kind.
Later, while at the resort, plaintiffs were preparing to take a picture in front of a horse-drawn carriage when the wagon, manufactured by another defendant, collapsed due to being too heavily weighted. The child’s mother suffered injury to her left hip and lower back as a result.
Plaintiffs filed a lawsuit, and non-profit organization defendant pointed to the signed releases as an affirmative defense, saying the releases precluded it from any claims from negligence.
Trial court declined to grant defense a summary judgment, finding the waiver did not expressly release defendant from claims of negligence. A jury ruled in favor of plaintiff and awarded nearly $72,000 in damages and costs.
On appeal, the 5th DCA reversed, holding that an exculpatory clause in the waiver that allowed for release from liability for “any and all claims and causes of action of any kind” barred the negligence action – even if it did not specifically cite the term “negligence.”
The state supreme court affirmed, finding the exculpatory clause was not ambiguous and therefore was not ineffective just because it didn’t contain express language shielding defendant from “negligence” or “negligent acts.”
Still, it’s worth noting the Florida Supreme Court underscored the fact that, in general, public policy tends to disfavor exculpatory provisions or contracts because they relieve one person or party of the responsibility to use due care. They also shift the risk of injury to the party who is likely least equipped to take the necessary precautions to avoid an injury or bear the cost of it.
That means courts are still going to be looking at these kinds of agreements with a critical eye. Our experienced Fort Lauderdale injury lawyers are available to help guide you through the process.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Sanislo v. Give Kids The World, Inc., Feb. 12, 2015, Florida Supreme Court
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