The Fifth District concluded 2009 with an opinion finding that an exculpatory clause in a dog show's contract was not sufficiently clear and unambiguous in Marie and Charles Tatman v. Space Coast Kennel Club, Inc. et al. (Monaco, Lawson, Jacobus).

As we've discussed before, exculpatory clauses in Florida receive strict analysis and must have only one clear interpretation to be valid.

In this case, the plaintiffs were owners of a dog and signed a form contract to show the dog. It was noted in the opinion that, during dog shows, the owners often do not personally show the dogs and may not even attend. The contract, in one paragraph, noted that the owner confirmed they owned the dog and that the dog was not hazardous. In the next sentence, it said, "I agree not to hold [dog show] liable for any accident or injury."

In this case, the owner was at the show and was injured when bitten by another dog. The owner sued the dog show and, as a defense, the hosts used the contract as a defense. The appellate court ruled that the sentence was ambiguous since it was unclear whether it was referring to just the dog or to the dog and the owner. Thus, with two reasonable alternative interpretations of the exculpatory clause, it was deemed void.

Tip: broad waiver clauses should be in their own paragraph so as to avoid being limited by prior/subsequent sentences.

The Florida Supreme Court took up the question of the enforceability of (fairly common) "pre-injury" liability waivers/general releases which are signed by parents so their children can participate in commercial activities. Finding this an issue of "great public importance," the Court held that these releases are NOT valid. If, however, the waiver is for the child to participate in non-commercial activities such as school or community events, such a waiver could be valid.

As the dissent points out, it is odd for the Florida Supreme Court to enunciate a public policy (of great public importance) despite no such prior reference in Florida general or statutory law. Moreover, quickly Florida lawyers will question (a) whether the parents can be called upon to indemnify the activity operator or (b) whether a case involves a commercial or school/community activity.

The case of Scott Corey Kirton et al. v. Jordan Fields et al.; Dean Dyess v. Jordan Fields; and H. Spencer Kirton v. Fields were consolidated appeals arising from an August 2007 Fourth District Court of Appeal decision.

Our prior post gives the backdrop of case law which lead to this Florida Supreme Court ruling, which should not have come as a shock in light of the hints dropped in the 2005 Global Travel v. Shea opinion.

The Court held that "a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in commercial activity." In a quick footnote, the Court then qualified that this decision would only be dicta if (when!) the questions arise about the enforceability of parent-signed exculpatory agreements for children to participate in non-commercial activity.

That creaking noise you hear is the door being swung wide open for appeals arising from the enforcement of liability waivers in non-commercial cases as well as in instances where it is unclear whether an activity is commercial or non-commercial.

The Court admitted there is no statute on point. It did, however, find that this situation invoked the State's parens patriae public policy basis to preclude the enforcement of such waivers. Signing a pre-injury waiver was deemed not to be so much a part of a fundamental right of raising children but more an "injustice" which "deprives the child of the right to legal relief" and could lead the child, family, and the State to "suffer." Signing the waiver "impacts the minor's estate and the property rights personal to the minor."

A short-shifted discussion was then had about how commercial activities could afford insurance and/or pass the cost along to the consumer; hence the differential treatment.

Justice Wells concurred but noted that "until today, this Court has never held that such a pre-injury release knowingly executed by a parent is unenforceable." He further pointed out, given the number of cases on point, that the Legislature certainly had the opportunity to outlaw such provisions -- and didn't. He concluded, "it is fundamentally unfair to now declare a new public policy and then apply it to the defendants in this case."

While Florida parents will likely collectively sigh with relief, this new public policy which divides commercial and non-commercial activity into two poorly-defined camps may lead to confusion -- if not mistaken decisions -- involving signing releases in quasi-commercial (or questionably non-commercial) activities.

What is in a name? That which we call a rose by any other name would smell as sweet.

Every rose has its thorn.

Pick your cliché. The case of John and Elaine Rose and State Farm Mutual Insurance Company v. ADT Security Services, Inc. may become quotable in Florida precedent.

ADT hit a home run securing the enforceability of its home security system service agreement – at least in the First District – and the court was kind enough to provide the actual exculpatory provisions and fraud/warranty waivers for the rest of us to peruse.

The Rose family bought a security system which included a fire alarm. After being struck by lightening, the house “burned to the ground.” The Roses sued claiming that, inter alia, the ADT salesman promised that, with the system, they would “never lose their house to a fire” and that it “would save the lives of the Roses' dog and family...” (State Farm was involved as the subrogation plaintiff and it appears the Roses survived to make the insurance claim; no word on the dog.).

ADT won summary judgment. Appellate court agreed. The ADT service agreement language carried the day.

The trial and appellate courts flat out assumed the Rose's allegations that the ADT salesperson promised them everything. But, for fraud in the inducement, the court held that “a party cannot establish justifiable reliance and may not recover in fraud for an alleged false statement when proper disclosure of the truth is subsequently revealed in a written agreement between the parties.” We'll quote that contract language below.

The ADT contract also knocked out claims of implied warranty of merchantability and implied warranty of of fitness. To overcome the first warranty, the contract must be in writing, conspicuous, and use the magic word, “merchantability.” Fitness warranties are even easier to kill, as the disclaimer simply needs to be in writing and conspicuous. Again, contract language below.

Finally, that same warranty-killing language was deemed to be a clear and unequivocal exculpatory clause.

Without further, ah, ado, here are the contract provisions:

CUSTOMER ACKNOWLEDGES THAT HE/SHE IS AWARE THAT NO ALARM SYSTEM CAN GUARANTEE PREVENTION OF LOSS, THAT HUMAN ERROR ON THE PART OF ADT OR THE MUNICIPAL AUTHORITIES IS ALWAYS POSSIBLE, AND THAT SIGNALS MAY NOT BE RECEIVED IF THE TRANSMISSION MODE IS CUT.... THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER AND ADT. CUSTOMER AGREES THAT ANY REPRESENTATION, PROMISE, CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR IMPLIED, NOT INCLUDED IN WRITING IN THIS AGREEMENT SHALL NOT BE BINDING UPON ANY PARTY...

UNDER NO CIRCUMSTANCES, SHALL ADT BE LIABLE TO THE CUSTOMER [...] FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE [...] AND HOWEVER OCCASIONED, WHETHER ALLEGED AS A RESULT FROM A BREACH OF WARRANTY BY ADT, THE NEGLIGENCE OF ADT, OR OTHERWISE.

(Note: under “General Terms,” the agreement disclaimed implied warranties of merchantability and fitness).

Exculpatory clauses (or "liability waivers") cannot be in a new home construction contract, says the Fifth District in Sue and Warren Loewe v. Seagate Homes, Inc. Not that people are building new homes these days anyhow. I suspect many of us have these clauses in our construction contracts. This could be a precedent-setting case.

In 2004, the plaintiffs hired the defendant to build a home. A week after moving in, one of the plaintiffs allegedly was struck by an improperly hung closet door. The plaintiffs sued. The court noted that the new house construction contract had both a seller's warranty (good quality; met acceptable professional standards) and an exculpatory clause which released the defendant from, well, every form of civil liability. Trial court said the exculpatory clause was unambiguous and enforceable.

The Fifth District (Evander, Pleus, and Cohen) reversed, noting that the exculpatory clause violated public policy in that "a party cannot 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." Of note, the court acknowledged that there was no PROVEN violation of the code but, regardless of whether they can establish that, this clause would absolve that liability and was therefore unenforceable.

Of note, the public policy at issue involves construction practices and standards under Florida Statute section 489.101 regarding regulation for public wellbeing and construction accountability under section 553.781.

Also of note, the clause below must fail because it excuses intentional torts. According to the panel, it is "obviously unenforceable to the extent it attempts to release Seagate of liability for an intentional tort." No other comments about the rest, if those of you who draft contracts want to salvage portions of this liability waiver:

Release. The Buyer hereby acquits, releases, exonerates, and discharges Seller, its officers, directors, owners, employees, their successors, legal representatives and assigns from any amount of damages, including but not limited to medical expense, lost wages, pain and suffering and disability resulting directly or indirectly from bodily injury, personal injury, or property damage, that may be or is caused, suffered or incurred by the Buyer, the Buyer's guests, employees, agents, suppliers, contractors or subcontractors at any time as the result in part or in whole from the construction process, the constructed dwelling or the lot on which it is constructed, the materials and supplies used in or incorporated into the dwelling or the lot on which it is constructed and the components therein. This Release shall apply and be effective regardless of the cause of the injury or damage, including but not limited to negligence, gross negligence, strict liability or the intentional conduct of any of the foregoing releasees

In an early summer post, we mentioned a May 2008 decision where the Fifth DCA refused to enforce an exculpatory clause / liability waiver for a 5-year old camper. A large number of gyms, camps, and other recreation activities include the consumer signing a waiver. Is it enforceable? Perhaps this Second DCA case -- which voided the YMCA's exculpatory clause -- will be of some interest.

In Elizabeth Anne Murphy v. Young Men's Christian Association of Lake Wales, Inc., a central Florida YMCA required a member to sign an exclupatory clause before using gym equipment. We'll reprint the clause below, but essentially the drafters tried to use "user friendly" language and got burned. In one sentence, the clause suggests that the YMCA will use "reasonable precautions" but, later on, all claims for negligence are waived. See the difference? In one instance, the "reasonable precaution" sentence suggests that YMCA will, indeed, use reasonable precautions -- then and only then will they be off the hook. But, the clause then says all claims are waived, presumably even if reasonable precautions are not used.

Read the clause below and make up your own mind. Quite frankly, it seems splitting hairs but, alas, that is the lesson of these cases. ANY suggestion of the slightest mulitple equivocation or multiple interpretation is going to unwind an exculpatory clause. Indeed, the provision below may be simply too long. That many words leads to the communication of a lot of ideas, some of which can be construed as being in conflict. Bottom line, exculpatory clauses need to be clear. Reference to "reasonable precautions" may be its un-doing. Best to be short and emphasized, right above the signature block.

The 2nd DCA (Canady, Whatley, Salcines) cited an old Third DCA (Miami area) case involving a camp liability waiver. That provision is included below. Quick test, was it enforced?

CLAUSE FROM OLDER CAMP CASE:

"It is further agreed that reasonable precautions will be taken by Camp to assure the safety and good health of said boy/girl but that Camp is not to be held liable in the event of injury, illness or death of said boy/girl, and the undersigned does fully release the Camp and any and all persons concerned therewith, for any such liability."

Enforced? Nope. That clause was "ineffective because it did not explicitly state that the camp would be absolved from liability for injuries resulting from its negligence." Indeed, we again see this "reasonable precaution" language rear its head. Note, all things being equal, if there is a duty and reasonable precautions are undertaken to meet it, a would-be defendant likely would not be found negligent anyhow. That's one of the standards of negligence. So such a "reasonable precautions" release is worthless.

Here's the YMCA clause:

"I am an adult over 18 years of age and wish to participate in Lakes Wales Family YMCA activities. In addition I give my children permission to participate... I understand that even when every reasonable precaution is taken, accidents can sometimes still happen. Therefore, in exchange for the YMCA allowing me to participate in YMCA activities, I understand and expressly acknowledge that I release the Lake Wales YMCA and its staff members from all liability for any injury, loss or damage connected in any way whatsoever to my (or my children's) participation in YMCA activities, whether on or off the YMCA's premises. I understand this release includes any claims based upon negligence, action or inaction of the Lake Wales Family YMCA, its staff, directors, members and guests. I have read and am voluntarily signing this authorization and release."

Florida intermediate appellate courts, believing they are following the will of the Florida Supreme Court, have been claiming that public policy prohibits the enforcement exculpatory clauses signed by parents for their children when the other contracting party is a commercial enterprise. The developing legal theory rests on ephemeral public policy grounds as well as oblique statutory references -- but the exceptions to this vague rule lack any real legal grounding. And that's something plainly obvious in the oft-cited statutory authority -- which doesn't even apply to these cases. While we believe there likely are limits to the enforcement of these waivers, three intermediate appellate courts have clearly found themselves a comfortable line to be drawn but have yet to truly develop the legal authority for their sentiment. That said, the Third, Fourth, Fifth DCAs are developing a pretty solid precedent.

For readers of this blog, this has been a repeated topic because it is interesting and it affects a lot of parents. The issues of parental signatures on exculpatory "liability waivers" for children first popped on the scene with the 2005 case of Global Travel Marketing, Inc. v. Shea where a parent signed a waiver to bring her child on a safari where the minor was killed by wild animals (more specifically, a 25-day safari for $39,000 in Botswana and Zimbabwe). The travel agreement contained an arbitration clause, which the Florida Supreme Court said was enforceable (i.e., parents have the authority to agree to arbitrate their child's tort claims by signing a pre-injury arbitration agreement). The clear hint, however, was that parents might not have the authority to sign exculpatory clauses for their kids. Such a principle rests upon the touchy legal grounds where the State's interest as the parens patriae (parent of his country) can overcome the parents' privacy rights over the children -- a government authority which the Florida Supreme Court acknowledged was typically left to child custody and juvenile delinquincy matters. Notably, the High Court repeatedly confirmed that it was ruling on the arbitration clause and not the exculpatory clause.

Time went on and we examined cases where the intermediate courts confronted parental waivers of liability for their children. In Estate of Christopher Jones v. Thunder Park, a child was permitted to ride motorcross bikes after his parents signed the waiver. Having injured himself before on the same jump, the minor ended up killing himself on another attempt. In interpreting the exculpatory clause, the Fourth District noted that "courts have consistently held that a waiver executed by a parent on behalf of a minor is supported by public policy when it relates to obtaining medical care, insurance, or participation in school or community sponsored activities." Thus, weaving together various precedents, the Fourth District (which had originally decided Shea) hatched the Florida precedent that parent-signed-exculpatory releases are against public policy if the contracting company is commercial.

The Third District thereafter received the case of Rachel Krathen v. School Board of Monroe County where a student was injured during cheerleader practice. The Krathen panel held that the release was clear and unambiguous and that the activity fell within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child's litigation rights. Thus, applying the Fourth District's reasoning to a different set of facts, the Third DCA did allow this waiver to stand.

Now the Fifth Circuit weighs in with Steven and Suzanne Applegate et al. v. Cable Water Ski, L.C. et al. where a five year old was injured when being pulled on a wakeboard by a water ski cable at camp. No details of the camp were provided but it appears to have been a commercial enterprise. The question was whether the exculpatory waiver of liability signed by the parent was valid. The Court -- consistent with the Fourth DCA's Thunder Park case -- held that it was not enforceable because the ski company was a commercial enterprise.

The Fifth DCA (Torpy, Sawaya and Evander) noted Florida's public policy of protecting children and the State's parens patriae authority which, at times, was broader than the parents' authority. The panel noted that the "expression of that policy" is found in the legislative limitation on parental authority to settle post-injury claims in Florida Statutes 744.301(2).

According to the Fifth DCA, the bar on such parent-signed-waivers is limited to commercial enterprises since they can insure against the risk of loss and include that in the price of participation. The court could, on the other hand, envision a public policy distinction for non-profits.

Without question, the Third, Fourth, and Fifth Circuits are all under the same banner with these three opinions. As the issue gets narrowed, and some entity is both commercial and school/community-based, we might see some differences arise. Until then, there is harmony.

But even the Florida Supreme Court noted that the "expression" of this public policy against allowing parents sign away a child's litigation rights is not well grounded. Section 744.301(2) involves the legislation requiring court approval of settlements for children AFTER the dispute has arisen. In Shea, Florida's High Court admitted, "there is no comparable statutory scheme governing pre-injury liability releases and arbitration clauses..." Whether that be poor statutory drafting or otherwise, the "expression" of this public policy which the intermediate appellate courts have relied upon does not apply (in Applegate, the panel talks about both Shea and the statute but omits that the Supreme Court acknowledged this gaping hole).

Moreover, at least some of the public policy behind the court-approval statute was to prevent parents from pocketing the proceeds. That's a far cry from parents who are willing to sign waivers just so their kids can participate.

Also, while there is a great body of parens patriae authority, even our High Court has recognized it is typically limited to delinquincy and custody matters -- where parents are not doing their job of child rearing, failing at that job or refusing to accept their parental obligations. To now bring that policy directly into the the risk-benefit analysis of allowing children to participate in sporting events suggests a serious leap of subject matter... all based off of loose notions that community based organizations aren't looking at bottom lines; are somehow better self-regulated; and can't afford insurance.

At the risk of being challenged for stretching the law, we noticed a recent case involving a minor seeking judicial waiver of parental notification in order to seek an abortion under Florida Statute 390 (known as the "Termination of Pregnancies" or "Parental Notice of Abortion Act") and thought there might be implications for arbitration enforcement law.

The 4th District's In Re: Jane Doe discusses the statutory requirements and judicial fact finding necessary to show that a minor has the maturity to make the decision to abort her pregnancy without parental notification or consent. Patently, this has nothing to do with arbitration. But, it does give some insight into the question of the minor's capacity. Once a minor obtains this judicial waiver, her next step is to go to the doctor where she likely, as a minor, will be signing forms including consents and perhaps even ADR agreements. Now the issue of the minor's "maturity" under F.S. 390 does not seem so far away from her "capacity" to contract for medical services and sign waivers or arbitration agreements. In fact one might argue that the statute presumes capacity follows a finding of maturity since the minor is required to sign a consent form and has the statutory right to sue.

Does a judicial waiver under F.S. 390 then create capacity in that particular minor to bind herself to contracts for the abortion and related services, even if the terms involve arbitration or exculpation? Is that just a catchy law school-ish question or a future lawsuit? Time will tell.

This case is additionally of interest since we are seeing a larger issue discussing whether a parent can sign arbitration or exculpatory agreements on behalf of their children. That issue was recently re-ignited with the 3rd District's decision in Rachel Krathen vs. The School Board of Monroe County, Florida.

In Jane Doe, the minor is 17 years old and gets pregnant by her fiance. The minor is in school, gets good grades, but can't tell her parents because of their "religious views and church standing." She apparently had not thought of an abortion but, upon speaking with her fiance's parents, she then considered an abortion since they "influenced" her with that option. According to the Third DCA, she independently recognized that she could not go to school and care for a baby nor could she financially pay for it. With some trepidation, we note in passing that this abortion case presents some loaded terminology reflective of the abortion debate; one could interpret that the trial judge and appellate panel have feelings on the topic based upon the phrasing of the order and the opinion. We suspect a Westlaw search for "Jane Doe" cases would find quite a number of cases with latent -- dare we say "pregnant" -- wording.

The trial judge denied the minor's petition for notification waiver under the statute, finding that the minor did not have maturity since she did not consult a medical expert nor study up on the risks of abortion (depending on your source, there are over a million abortions performed a year and it is one of the most common surgeries -- risks according to this site suggest they fall in line with most surgical risks). Rather the "only" (italicized) reason for the arbortion was "the parents of the man with whom she conceived the child told her to do so." The appellate court reversed on the grounds of abuse of discretion, noting that the statute sets forth a broad range of criteria for assessing the minor's maturity and singling out one facet alone was not sufficient. In this case, the panel noted that many adult women do not consult medical experts before getting an abortion and that consulting a "trusted adult" might be considered a "positive factor" rather than a suggestion of "strong influence[]."

We will not linger too long on this issue, as it is simply an errant thought and this is not a forum for the abortion political debate. But it is interesting that a minor can be found judicially "mature" for this critical decision under the statute however there is little to no guidance as to the minor's "capacity" to contract for medical services thereafter and how broad that capacity might be construed. For example, in Blankfeld v. Richmond, a health care surrogate/proxy was found to have capacity to admit the ward into a nursing home as a medical decision but did not have statutory authority to bind the ward to non-medical decisions like arbitration. No other Florida court has signed onto that legal analysis, but that's the same court which ruled in this Jane Doe case. Certainly someone will argue that statutory "maturity" and contractual "capacity" are two different things. One might even argue third party beneficiary issues or even questions whether the minor child can waive any rights of the fetus.

A new brewing conflict in Florida relates to parents' ability to waive their children's rights when the parents sign contracts which include exculpatory releases and/or arbitration clauses. It appears these two differing clauses will get different treatment under this developing area of Florida law. Before we get to our cheerleader case, some background is necessary.

The present authority is Shea v. Global Travel Marketing, Inc. which found that arbitration clauses in contracts signed by the parent can compel the minor to arbitration since "parents who choose to allow their children to engage in these activities may also legitimately elect on their children's behalf to agree in advance to arbitrate a resulting tort claim if the risks of these activities are realized." BUT, that decision repeatedly warned that the Supreme Court was not analyzing the exculpatory release -- just the arbitration clause.

Thereafter, in August 2007, the issue was re-ignited with the Fourth DCA's decision in Jordan Fields as PR for the Est. of Christopher Jones v. H. Spencer Kirton; Scott Corey Kirton and Dudley R. Kirton d/b/a Thunder Cross Motor Sports Park; Kirton Brothers Lawn Service, Inc.; and Dean Dyess. Briefly, a minor was riding motorcross at a motorcycle park and injured himself; the parents had signed a pre-injury exculpatory release. Recall the Fourth DCA had been reversed by the Supreme Court in Shea, but that decision was limited to arbitration. Thus, the Fourth DCA still had an open legal field to issue its ruling against parent-signed exculpatory waiver clauses, stating: "[t]he effect of the parent's decision in signing a pre-injury release impacts the minor's estate and the property rights personal to the minor. These rights cannot be waived by the parent absent a basis in common law or statute."

The Third DCA now enters the fray with Rachel Krathen vs. The School Board of Monroe County, Florida. Krathen's suit alleges that she was injured during cheerleading practice and that the school failed to supervise, have coaches present, have protective mats, and/or follow procedures. Her injuries were not specified in the opinion. It is unclear if this cheerleader in the 3rd row is the plaintiff. The exculpatory language in the Consent and Release from Liability Certificate is not repeated in full in the opinion (a pet peeve of ours) but it releases the school for liability of "any injury or claim resulting from... athletic participation."

Krathen presents an interesting twist since she, as an individual minor, signed the agreement as did her parents. The court pointed out, in a footnote, that it analyzed this case based upon just the parents' signature, not the daughter's signature.

The Krathen panel interestingly undertook a long discussion of Shea even though that decision plainly stated it was analyzing the parental authority regarding arbitration, not exculpation. That point was not made clear in Krathen. We're assuming this analysis was done to show that the Third DCA panel was at least considering this case with guidance from how the Supreme Court viewed parental authority in Shea.

Nonetheless, following an older 2004 Third DCA case, the panel held that this release was clear and unambiguous and that the activity fell within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child's litigation rights in authorizing the child's participation.

In the last year, three Florida DCA's have addressed the validity of exculpatory clauses which eliminate a consumer/customer's right to sue. Although disfavored, these pre-injury waivers can survive and be enforced if they are sufficiently clear and devoid of ambiguity. Our discussions are here.

Arbitration and exculpatory clauses overlapped in Global Travel Marketing, Inc v. Shea which the Florida Supreme Court decided in 2005. In that case, a parent took a child on an African safari and the child was pulled from his tent and mauled by hyenas. The safari contract included an arbitration clause and an exculpatory clause. The question was whether the parent could bind the child to arbitration -- with the issue of whether the parent could bind the child to the exculpatory clause was left hanging out there.

Shea discussed a number of interesting issues:

1. Public policy supports parent-signed waivers for medical care, insurance, or school/community events;
2. Florida has "parens patriae" authority to protect children in juvenile delinquency and dependency matters;
3. Pre-suit settlement of claims over $15k for minors requires court authorization under F.S. 744.387
4. BUT, "there is no comparable statutory scheme governing pre-injury liability releases and arbitration clauses..."
5. The 14th Amendment gives parents authority to make decisions about "activities appropriate for their children...[including] physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or, in this case, an adventure vacation in a game reserve."

Shea repeatedly (we counted three times) stated that it was decided the parent's right to sign a pre-injury arbitration clause and that the decision was NOT deciding or commenting on whether the parent had authority to extinguish a child's right of recovery by singing a pre-injury exculpatory agreement.

With Shea tucked firmly under our arm, it was only a matter of time for those of us on the legal journey to come across a set of facts where a parent signs a pre-injury exculpatory waiver. Coincidentally, it arises in the 4th DCA, where Shea was originally brought (note, the Supreme Court quashed the 4th DCA's opinion in Shea).

Enter Jordan Fields as PR for the Est. of Christopher Jones v. H. Spencer Kirton; Scott Corey Kirton and Dudley R. Kirton d/b/a Thunder Cross Motor Sports Park; Kirton Brothers Lawn Service, Inc.; and Dean Dyess. In this case, a 14-year old boy's parent signed a pre-injury exculpatory agreement which allowed him to enter the motorcycle park. The boy had previously tried a jump which landed him in the hospital with broken bones. On this trip, he tried the same jump again, lost control, and died after the bike landed on top of him.

For those interested, a slightly outdated website for Thunder Cross is here. That said, this website suggests the park was sold for home development. The Palm Beach Post ran this story on the appeal. Youtube has this 2006 video which may not be the same minor on an ATV.

In Fields, Judge Roby at the trial court level entered summary judgment upholding the waiver. As Florida appellate courts are often fond of doing, the 4th DCA reversed. The 4th acknowledged that the Florida Supreme Court's Shea decision specifically skirted the issue of the enforceability of a parent signing a waiver for a child. The 4th also noted that "courts have consistently held that a waiver executed by a parent on behalf of a minor is supported by public policy when it relates to obtaining medical care, insurance, or participation in school or community sponsored activities.

As the 4th DCA sees it, this is not a question of controlling what the parents allows children to do, it addresses "the effect of the release insulating the provider of the activity from liability..." The decision to absolve the provider from liability "goes beyond the scope of determining which activity a person feels is appropriate for their child." Thereafter, the court discusses "certain risks" inherent to scuba or sky diving but then distinguishes negligence where the diver goes too deep or the pilot is intoxicated. This is curious since there is no reference in Fields to what alleged negligence is at issue or if the fatal injury was simply part of the inherent risk of motorcross.

The bottom line is that, "[t]he effect of the parent's decision in signing a pre-injury release impacts the minor's estate and the property rights personal to the minor. These rights cannot be waived by the parent absent a basis in common law or statute." The court goes on to reference the statutes requiring court approval for claims of damages to minors under Chapter 744.

This case is certainly not over. There is a direct conflict with Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998) and the 4th DCA (as they did in Shea) again certified the issue as one of great public importance.

Obviously, this decision is going to have a significant impact on scuba diving, motorcross, and any other physical activity events where parents sign waivers (presumably outside of school or community events). We note the involvement of several associations which filed amicus briefs. Again, more is expected at the Florida Supreme Court level. The outcome, if the Plaintiff wins, will be to void any parent-signed exculpatory clauses for these kinds of events which, in turn, will likely lead these event providers to deny access to kids under 18 (and hurt their business). We'll be watching.

P.S. for those interested in post-Shea cases, check out Nichols v. M N Medinvest which went from 2nd DCA to Florida Supreme Court (see here).

While not favored, recent decisions involving exculpatory clauses seem to uphold them in Florida.

Plaintiff Sandra Cook was allegedly injured on a boat ride provided by Crazy Boat of Key West, Inc. after she signed a "Total Release of Liability Affidavit." She then sued claiming the Release was void since it did not use the magic words "negligent" or "negligence" and that it violated 46 U.S.C. 183(c)(a) which prohibits limitations on liability for vessels that transport passengers between ports.

The 3rd DCA held in Sandra A. Cook v. Crazy Boat of Key West, Inc. and William Shepard that the release was NOT ambiguous because it did not use the word "negligence." The 3rd DCA referenced a prior 1st DCA case which noted that federal law, likewise, did not require magic words.

As to the second issue, the court held that Crazy Boat left and returned to the same port (not "between" ports) and was not "transporting" passengers since it was just a pleasure cruise which ended up in the same place. Hence the federal law did not apply.

Summary judgment based upon Crazy Boat's release was upheld.

Keywords: waive; waiver; liability; exculpatory

The 5th DCA recently declined to enforce an exculpatory clause in Richard Cain v. Louis Banka. For those who write or litigate exculpatory clauses, this decision may prove to be critical — or at least a good starting place for research.

A motorcycle rider signed a release in 1999 to permit him to ride at the Motocross World of Central Florida. The 1999 release was supposed to be a "master release" covering any time the plaintiff (or anyone else) rode bikes at the park. The release included an exculpatory clause: "each of the undersigned hereby release [...] of and from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of or relating to any loss, damage or injury...."

The trial court granted summary judgment for the defendant but the 5th DCA reversed noting that the release did not sufficiently confirm that it is was a "perpetual release" going into the future.

Exculpatory clauses are unique creatures of contract law since they are disfavored terms which must be clear and unequivocal such that "an ordinary and knowledgeable person will know what he is contracting away." Basically, it appears that any loophole, double meaning, or absence of total clarity will undue the exculpatory clause. In this case, the absence of total clarity killed the clause.

The 5th DCA noted that it did not follow the "bright line" test whereby the exculpatory clause must use the magic words "negligent" or "negligence." According to the Cain opinion, all of the other DCAs require the magic words. This leads, obviously, to possible further appeals. Meanwhile, the 5th claims it comports with federal law which "eschews" the need to use specific terms (federal law on arbitration and exculpatory clauses appear to favor defendants).

The release in question failed because it "contains no express language informing the plaintiff that it covered each and every occasion in the future that he visited the track." In light of their disfavored status, exculpatory clauses must, according to Cain, state with clarity and precision that they encompass present as well as future events.

The defendant tried to argue the use of plural "races" or "practices" clearly reflected the intention that the release apply to future visits. The court noted that more than one race could occur on the same day. Thus, the temporal term was not clear and unequivocal. That said, the 5th DCA did not agree that exculpatory clauses had to be signed contemporaneously or upon each admission — the perpetual term, however, needed to be sufficiently clear.

Plaintiff lawyers typically sue both the doctors and the hospital where they work for any medical negligence which alledgely arises during the hospital stay. Lawyers for the hospital, sooner or later, seek summary judgment claiming no liability for the doctors because they are independent contractors.

Most of this battle over hospital respondeat superior liability is fought using tort theories. The 5th DCA, however, addressed the issue in Pope v. Winter Park Healthcare using the patient consent form as an express contract.

In this case, the court focused on the fact that the consent form, as a contract, was ambiguous as to whether it had merely delegated the services which doctors normally perform and not the duty. Here's the relevant language:

CONSENT FOR MEDICAL AND SURGICAL TREATMENT: I authorize Winter Park Memorial Hospital (WPMH) to furnish the necessary medical or surgical treatments, or procedures, including diagnostic, x-ray, and laboratory procedures, anesthesia, hospital services, drugs and supplies as may be ordered by the attending physician(s), his assistants or his designees. [...]

I recognize that the physicians who practices [sic] at WPMH are not employees or agents of the hospital but are independent physicians; the hospital may delegate to these independent physicians those services physicians normally provide; and any questions relating to care my physician has given or ordered should be directed to him/her.

The 5th DCA noted that this "consent form plainly puts the reader on notice that physicians practicing at Winter Park Hospital are independent contractors, not agents or employees" however "there is no language in this contract between Winter Park Hospital and the Popes of any assent by Mrs. Pope that the delegation of Winter Park Hospital's duty to provide the necessary medical treatment to independent contractor physicians will discharge the hospital from its contractual obligations. Acknowledgment on the part of Mrs. Pope that the duty to provide “medical or surgical treatments” can be delegated to an independent physician does not constitute an agreement on the part of Mrs. Pope to discharge Winter Park Hospital from any contractual duty it assumed."

In a memorable quote, "delegation and discharge are two different things..."

NOTES:

1. This case provides a solid overview of the tort and contract theories which are disputed when a hospital is sued for respondeat superior in medical malpractice cases. A worthy read.

2. Hospitals, health care facilities, nursing homes, ALFs, and their lawyers should consider whether they want their admission or consent agreements to be "express contracts" addressing respondeat superior or not. If so, the agreement needs to clearly address delegation and discharge according to this case.

3. It appears to us that any hospital consent agreement which is broad enough to mention the doctors being independent contractors but is not specific enough to delegate and discharge liability will prevent a hospital from obtaining summary judgment under Pope's precedent.

4. If a hospital consent form was written more like an exculpatory clause, it might hold up. Interesting, since nursing homes appear to be statutorily prevented from such tactics.

Almost every fitness center requires members to sign membership agreements which frequently include clauses disclaiming liability for negligence. Can these be enforced? According to the First DCA, at least one such clause is enforceable:

Premier shall not be liable for any injuries or any damages to any member or guest, ... or be the 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, its officers, employees or agents. Member... does hereby expressly forever release and discharge Premier ... 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.

In Shaw v. Premier Health and Fitness Center, Inc., the trial court granted summary judgment after finding this waiver provision to clearly and unequivocally release the gym from liability for its own negligence. The appellate court agreed.

Unlike arbitration clauses, exculpatory clauses are not favored but will be enforced if clear and unequivocal. In an effort to avoid enforcement, the plaintiff cited to an old 4th DCA decision, Ivey Plains, Inc. v. FCM Corp., 282 So.2d 205 (Fla. 4th DCA 1973). In that case, the exculpatory clause was separate and distinct from the indemnity clause (the latter of which was italicized and did not reference negligence).

In Shaw, nothing distinguished the two clauses and the court found that the phrase "all such claims" refers back to "acts of passive or active negligence on the part of Premier" and that the last sentence indicates that the entire paragraph is intended to be read together.

Significance:

Shaw provides a model of a waiver provision which apparently will be upheld by the courts. Drafting parties need to make sure that the exculpatory and indemnity clauses are not in conflict and are clear and unequivocal. Although the court doesn’t specifically indicate, it might be a good idea to place the waiver clause right above the signature line. A drafting lawyer might even put a sentence in there that both clauses are to be read together.