The Florida Supreme Court has issued a decision that strengthens a defendant’s use of liability waivers in fending off civil litigation. In so doing, the court approved the Fla. 5th District Court of Appeal’s approach and rejected the decisions reached by the First, Second, Third and Fourth District Courts of Appeal.
This is not to say just because an injured person signed a liability waiver – sometimes called a “release” – that the case is a lost cause. However, an injury lawyer will have to deftly argue that point to overcome this challenge even prior to trial.
The courts may still tend to view these waivers with a skeptical eye, but now with the ruling of Sanislo v. Give Kids The World, Inc. these documents may now pose a bigger problem for Florida plaintiffs than before.
According to court records, defendant is a non-profit organization that offers free “storybook vacations” to seriously ill children and their families at its resort village. Plaintiff was a mother who went to the resort with her husband and seriously ill child on one of these vacations.
As part of the “wish request form” signed prior to the trip, the couple agreed to release the organization from any liability for any potential cause of action. Once their vacation in Kissimmee was approved, the couple again signed another waiver once they arrived.
Later, while the family attended a horse-drawn wagon ride, the wagon, manufactured by a co-defendant, collapsed, due to being overloaded. Plaintiff sustained injuries to her lower back and hip. They subsequently filed a lawsuit against the non-profit, alleging negligence.
Defendant responded the action was precluded by the signed releases. Trial court, however, denied defense motion for summary judgment.
The case proceeded to trial, and jurors reached a verdict in favor of plaintiff, awarding her $55,400 for damages and costs of $17,000.
On appeal, the non-profit argued the lower court made a mistake in denying its pretrial motion for summary judgment. It pointed to the signed releases as being unambiguous and did not contravene with public policy.
The 5th DCA reversed, finding the exculpatory clause should be recognized as effective so long as the language is clear and understandable in such a way that an ordinary and knowledgeable person would know exactly what he or she is contracting away.
Further, the court held the bargaining power of the two parties should not be considered because it was outside any public utility or public function, and the couple wasn’t required to ask for or go on a vacation.
Meanwhile, the four other district courts in the state had ruled on various appeals that exculpatory clauses are ineffective as a bar to negligence action unless there is express language that refers to the release of defendant for its own negligent acts or negligence.
The Florida Supreme Court accepted review as a result of the conflict.
Plaintiff argued and ordinary and knowledgeable person doesn’t expect a waiver to release another party from the duty to provide reasonable care.
Defendant argued many other states reject this line of reasoning, and that the language of exculpatory clauses would be rendered meaningless if found ineffective.
Ultimately, the Florida Supreme Court sided with defense, finding the exculpatory clause was not ambiguous and therefore was not ineffective just because it failed to expressly release a defendant from liability for negligence or negligent actions.
Our Broward injury lawyers know this will make it more difficult for plaintiffs to overcome the issue of a liability waiver in court. But again, it may not be impossible. It’s important to consult with an experienced attorney as soon as possible after your injury to learn more about your options.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Sanislo v. Give Kids The World, Inc. , Feb. 12, 2015, Florida Supreme Court
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