Florida Injury Attorney Blawg
Language in documents used to absolve parties from liability for their own negligence is disfavored by the courts. Nevertheless, under certain circumstances, such exculpatory clauses or pre-injury releases/waivers are enforceable in Florida.
Pre-injury releases are used frequently in connection with activities considered risky, such as go-cart and off-road racing, high school football, horseback riding, and cheerleading, but are also used for commonplace activities such as Disney World rides and school outings.
Because of their disfavor with the courts, exculpatory clauses will be strictly construed against the party seeking to avoid liability. Requirements for enforceability include:
- The language must be clear and unambiguous.
- The intent to limit liability must be expressed in clear and unequivocal terms.
- The waiver must clearly state that it releases the party from liability for his own negligence (although this requirement is not strictly followed by Florida’s 5th DCA).
Other factors weighing on enforceability include:
- Does the release give the plaintiff the option to purchase insurance or pay additional fees to cover loss, injury or damage?
- Is exculpatory language in different color or typeset than other provisions of the agreement?
- Is the release signed, dated, and witnessed?
Certain types of exculpatory clauses are prohibited as being against public policy. They include: (a) those that attempt to avoid liability for gross negligence or intentional torts; (b) those that release or waive a party from liability for the breach of a positive statutory duty designed to protect the well-being of the person executing the release; and (c) attempting to shorten the time within which legal proceedings must be initiated, also known as a statute of limitations. (See Florida Statute 95.11.)
FLORIDA CASES OF INTEREST
Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006)
Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (Fla. 3rd DCA 1998)
O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982)
Our law firm, which represents individuals injured in accidents, does not look favorably on pre-injury liability releases. In our view, all individuals, companies, and governmental entities should be held fully accountable for their actions and misdeeds without regard to position or stature, and should not be able to contract away this responsibility. Nevertheless, pre-injury releases are part of the legal landscape and must be addressed.
Please contact us today to schedule a free, confidential consultation to discuss your case.