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."