Cole, Scott & Kissane has highly trained attorneys who focus on the defense of the fitness, travel and entertainment industries. Quite often, these industries offer facilities or services to the public or to private members that involve a heightened risk of sustaining personal injuries. As a means of reducing potential exposure to personal injury claims, our clients often require patrons or guests to sign membership contracts or release agreements that contain exculpatory clauses purporting to limit liability for personal injuries sustained by the patron or guest.
These defenses are rarely ironclad. In fact, Florida law imposes very stringent requirements on exculpatory clause defenses because public policy disfavors them. Exculpatory contracts are not favored because they attempt to relieve a party of the duty to exercise due care while simultaneously shifting the risk of injury to a party who is perhaps less equipped to take the necessary precautions to avoid the risk of injury or to bear the risk of loss.1 Of course, there is a countervailing public policy—that which favors the enforcement of contracts.2
In order to strike a balance between these competing public policies, Florida courts have limited the enforcement of exculpatory contracts to instances where such agreements were unambiguous and the intention to be relieved from liability was clear, unequivocal and so understandable that an ordinary and knowledgeable person would know what he or she is contracting away.3 For decades, our District Courts of Appeal have interpreted these requirements to mean that an exculpatory clause was only effective to bar a negligence action if it expressly stated that it released a party from liability for its own negligence.4 This rule required an exculpatory clause to make reference to the terms “negligence” or “negligent acts” as a predicate to its enforcement.5
When analyzing an exculpatory clause defense, our trial courts typically ask at least four questions:
Did the plaintiff personally sign the contract containing the exculpatory clause?
Was it signed before the injury occurred?
Was the plaintiff over the age of 18 when he or she signed it? And,
Did the exculpatory clause contain the magic language? (e.g. “I hereby release X from all liability, whether caused by X’s own negligence or otherwise.”)
If the answer to any one of those questions was “no,” then the likelihood of prevailing on such a defense was, in most circumstances, practically nil.
However, in 2015, the Florida Supreme Court in Sanislo v. Give Kids the World, Inc. may have changed that analysis, at least as it pertains to the magic language requirement.6 Give Kids the World, Inc. was a non-profit organization that provided free “storybook” vacations to seriously ill children at its resort village.7 Ms. Sanislo’s child received one such vacation package.8 As part of her application, and again upon arriving at the resort, Ms. Sanislo signed a release, which read, in pertinent part:
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 be 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 further agree to hold harmless and to release Give Kids the World, Inc. from and against 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 . . . 9
(Emphasis added.) While at the resort, Ms. Sanislo stepped onto a wheelchair lift that malfunctioned, causing her to fall and sustain injuries to her hip and back.10 Ms. Sanislo filed suit.
Give Kids the World, Inc. filed a motion for summary judgment based upon the language of the exculpatory clause, which the trial court denied.11 The Sanislos prevailed at the trial court level and Give Kids the World, Inc. appealed.12 The Fifth District Court of Appeal, rejecting decades of jurisprudence from Florida’s other District Courts of Appeal, reversed the trial court’s denial of the defendant’s motion for summary judgment and found that the language of the exculpatory clause was unambiguous and enforceable, despite the lack of any reference to the terms “negligence” or “negligent acts.”13 This presented a conflict among the District Courts of Appeal on an important issue of law.
In a landmark 4-3 decision, the Florida Supreme Court held that the absence of the words “negligence” or “negligent acts” in the exculpatory clause did not render the agreement per se ineffective to bar a negligence claim. In so holding, the Court reasoned that the term “liability” was more readily understandable than “negligence” to an ordinary and knowledgeable person.14 Thus, an agreement that expressly relieved a party from “any liability whatsoever” and which also provided that the scope of the exculpatory agreement included “damages or losses or injuries” could be enforceable even though it did not reference the term “negligence.”15
Although Sanislo appears on its face to broaden the enforceability of pre-injury releases, the fact remains that exculpatory clauses are in derogation of common law and public policy and will, therefore, continue to be strictly construed by our courts. In fact, the United States District Court for the Southern District of Florida has already observed that Sanislo may have limited applicability based upon the Florida Supreme Court’s note that it was important to its decision that the activities at issue in the Sanislo case “were not inherently dangerous.”16 Nonetheless, Sanislo represents a significant and perhaps promising departure from decades of jurisprudence that could have a positive impact on the fitness, travel and entertainment industries’ abilities to limit potential exposure to personal injury claims.
1 Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008).
2 Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973).
3 Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006).
4 Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144 (Fla. 2d DCA 1981).
6 Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015).
7 Id. at 258.
9 Id. at 259.
14 Id. at 260.
15 Id. at 270.
16 Salas v. Schachter, 2015 WL 7007803, at *2 (S.D. Fla. 2015) quoting Sanislo, 157 So.3d at 271.
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