One of the main goals behind holding individuals and corporations accountable for the damage caused by their negligence is to make society a safer place. The thinking is that to avoid the substantial hassle and expense of lawsuits and damage awards, thoughtful people will act reasonably.
An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. Elalouf v School Board of Broward County, 311 So.3rd 863, 865 (Fla. 4th DCA 2021). Exculpatory clauses are commonly used against children in Florida’s public and private schools.
In Elalouf, a student injured while playing soccer for his varsity team was denied the right to seek a remedy because his father had signed an exculpatory clause before the game. Never mind that his injury resulted from School Board negligence — during a varsity game, another player hit the youngster while he attempted a shot on goal. The force of the hit threw him into an unpadded cement barrier near the soccer field.
The enforceability of the clause was challenged on the following grounds: (1) it was ambiguous and confusing, (2) nothing in the release operated to excuse the school board’s own negligence, and (3) the holding in Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), which found that a “pre-injury release executed by a parent on behalf of a minor child is unenforceable… in a tort action arising from injuries resulting from participation in a commercial activity,” Id. at 358, should be extended to a non-commercial activity provider like the school board.
All of the youngster’s arguments were rejected.
We’re all for children engaging in school activities. Unfortunately, the problem with this decision and others like it — see Krathen v. School Board of Monroe County, 972 So. 2d 887 (Fla. 3d DCA 2007) — is that School Boards can let their guard down without the fear of consequence. That’s a bad thing.
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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.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.