An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 832 So.2d 270 (Fla. 4th DCA 2002).
An indemnity agreement arises when one individual takes on the obligation to pay for any liability, loss or damage that has been or might be incurred by another individual. Free Legal Dictionary. Some indemnity agreements purport to indemnify a party against its own wrongful acts.
Exculpatory clauses and indemnity agreements which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Since both are looked upon with disfavor by the courts, they are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what is at stake. Exculpatory clauses: Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001). Indemnity agreements: Cox Cable v. Gulf Power, 591 So.2d 627 (Fla. 1992); Charles Poe Masonry, Inc. v. Spring Lock Scaffolding, 374 So.2d 487 (1979); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973); Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. 3d DCA 1966); and Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964).
Our law firm is currently in the early stages of a case involving personal injuries and an indemnity agreement, but no exculpatory clause. Our catastrophically injured client was an independent contractor pulling large trailers owned by a Florida company. He was injured through the negligent maintenance of the trailer by the Florida company. He and the company have in place an agreement calling for our client to indemnify the company for injuries resulting from its fault.
The legal question is whether the indemnity agreement effectively precludes our client from recovering for his losses from the company. We believe that the answer is No. In our considered opinion, it would take an exculpatory clause, rather than an indemnity agreement, to deny our client the right to recover damages from the company for negligently causing his injuries.
Pre-injury releases, or exculpatory clauses, 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 also 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.)
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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