Defeating Pre-Injury Waivers and Releases for Recreational Activities Posted on June 10, 2014 by Larry Bodine Playing in a municipal soccer league, scuba diving, amateur auto or motorcycle racing may require participants to sign an agreement with an exculpatory clause. By Melvin B. Wright Exculpatory clauses are provisions in contracts that release or waive injury claims before an accident even happens. These “pre-injury” or “pre-accident” releases or waivers are given in exchange for something valuable, such as a monetary fee together with the privilege to participate in a potentially dangerous activity. There are two points of attack to invalidate these clauses: Ambiguity. The law requires the terms and intent of any such agreement to be clear and unambiguous. Understandability. The intent and material terms of the agreement must be such that an ordinary knowledgeable person would be able to understand at the time of signing exactly what they were waiving. Most often, exculpatory clauses are contained in participation agreements signed in conjunction with athletic competitions or hazardous activities, such as parachuting or zip-lining. Playing in a municipal soccer league, scuba diving, amateur auto or motorcycle racing are activities in which a sponsor may require participants to sign a participation agreement that includes an exculpatory clause. Not all exculpatory clauses are valid To bar a participant from suing later for injuries, it must be shown that there was a clear and unequivocal agreement to waive claims that might arise from a specified activity. In determining whether these agreements are valid, the devil is quite often in the details. As a general rule, Florida courts do not favor exculpatory clauses that give a party a “get out of jail free card” to harm someone by virtue of an agreement the injured party signed before they were injured. Exculpatory clauses are “by public policy disfavored in the law because they relieve one party of the obligation to use due care, and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 110 (Fla. 5th DCA 2009). There are two long-standing and recognized principles of law underlying the enforcement of exculpatory clauses: Exculpatory clauses are generally looked upon with disfavor, but they are enforceable; and Agreements which purport to limit, in advance, one’s liability for negligence will not be enforced unless the intention to limit is clearly and unequivocally expressed. DeBoer v. Florida Offroaders Driver’s Association, Inc., 622 So.2d 1134, 1135 (Fla. 5th DCA 1993), citingO’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982); Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla.2d DCA 1990); et al. So, what are the primary considerations examined by courts to determine the enforceability of “exculpatory clauses” in Florida? The language of exculpatory clauses must be clear and unequivocal While exculpatory clauses are enforceable, any attempt to limit one’s liability for his own negligent act will not be inferred from an agreement unless that intention is expressed in clear and unequivocal terms. Tout v. Hartford Accident and Indemnity Company, 390 So.2d 155 (Fla. 3d DCA 1980); Ivey Plants, Inc. v. F.M.C. Corporation, 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla. 1974). Exculpatory clauses are disfavored and 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 he is contracting away. Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006); 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). While no “magic words” are required in some Florida courts, the language must clearly notify the signing party they are giving up specific defined rights. The Fifth District held that releases signed by the injured party before the damages occurred were effective to bar subsequent claims for negligence even though neither of them used the word “negligence.” In DeBoer v. Florida Offroaders Driver’s Association, Inc., 622 So.2d 1134, 1135 (Fla. 5th DCA 1993) and later in Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998). The Fifth District held in Hardage Enterprises Inc. v. Fidesys Corporation, N.V., 570 So.2d 436 (Fla. 5th DCA 1990) that: There are no words of art required in a release if the intent of the parties is apparent from the language used. No Florida court has ever held that the word “negligence” must be included in a release for it to bar negligence claims. According to the great weight of authority in this country, specific wording is not a precondition to finding that a release precludes negligence claims. Id. at p. 437. In UCF Ath. Ass’n v. Plancher, 121 So. 3d 1097, 1110 (Fla. 5th DCA 2013) (Berger, J., concurring in part, dissenting in part), the Fifth District Court of Appeal reasserted its position that “magic language” was unnecessary but recognized that other district courts of appeal in Florida had adopted a “bright line” rule requiring the word “negligence” in exculpatory clauses: Because the exculpatory clause at issue in this case does not expressly release UCFAA from its own negligence, the Planchers contend the release is unenforceable. They argue that because the exculpatory clause does not include the word  “negligence” the release does not clearly and unambiguously waive actions of negligence. Although the other districts have adopted a “bright line” rule requiring such express language, … this court has repeatedly rejected the need for express language referring to a release of the defendant for “negligence” or “negligent acts” in order to render a release effective to bar a negligence claim. Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006); see also Give Kids the World, Inc., 98 So. 3d at 759; Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998). I continue to believe ours is the proper view. Because the word “all” is easily understandable, a release waiving “all claims, causes of actions or demands of any kind and nature whatsoever” clearly encompasses all claims, including claims of negligence, even though the term “negligence” is not specifically referenced. The Fifth District Court of Appeal also clarified its opinions on the necessity of “magic language” in Hackett v. Grand Seas Resort Owner’s Ass’n, 93 So. 3d 378, 380 (Fla. 5th DCA 2012), when the Court held: The point of Cain, however, was not to sanction sloppy or ambiguous language within an exculpatory clause. Rather, it was simply to point out that we ought not to be hidebound by requiring the use of a specific word like “negligent,” in order to enforce a release from liability. Instead this court will look to language that clearly indicates that if one signs the document, one will be giving up certain specific defined rights, most ordinarily the right to seek compensation for injuries caused by the negligence of the person released. Better practice is probably to use the words, “negligent” or “negligence” in drafting an exculpatory clause. Certainly the use of those magic words may well be the tipoff that one accepting this condition will be waiving or releasing the right to seek financial compensation from the party being released. Those words, however, are not the only ones that will suffice. In the present case, however, the level of ambiguity is simply too great to allow enforcement of the clause. Judge Cohen of the 5th District Court of Appeal has written two concurring opinions, each of which voiced his desire to join the other districts in requiring an express reference to “negligence” in order to release an indemnitee from his own negligence. See Give Kids the World, 98 So. 3d at 763-64 (Cohen, J., concurring); Hackett, 93 So. 3d at 381 (Cohen, J., concurring) (“The majority opinion correctly sets out the controlling law within this district and I agree the release in this case was not clear, unambiguous, and unequivocal… I believe the better rule of law would require that such releases expressly refer to the release for acts of negligence, which puts an average person of ordinary intelligence on notice of the waiver of a party’s duty of due care.”). The Florida Supreme Court has accepted Give Kids the World on appeal to determine: [W]hether an exculpatory clause requires a specific reference to negligence in order to make the clause effective in such actions. The Fifth District has consistently held that a specific reference to negligence is not required; however, the other four districts require such language. This Court should resolve this conflict and establish a precedent that will create uniformity and consistency in the courts of this state.” Give Kids the World, Petitioners’ Initial Brief on the Merits. Until the Supreme Court of Florida decides this issue, an exculpatory clause containing no “magic words” could be enforceable in one part of the state and unenforceable in another. The terms of the exculpatory clause must be unambiguous as to the material considerations, such as the activities, risks, and time frame. Although exculpatory clauses are generally disfavored in the law, unambiguous exculpatory contracts are enforceable where the intention to be relieved from liability is made clear and unequivocal. Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th DCA 2009). While the wording must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away,” id. (quoting Gayon v. Bally’s Total Fitness Corp., 802 So. 2d 420, 421 (Fla. 3d DCA 2001)); see also Raveson v. Walt Disney World Co., 793 So. 2d 1171 (Fla. 5th DCA 2001), the ability to predict each and every potential injury is unattainable and is not required to uphold an exculpatory provision within a release. Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), rev. granted, No. SC12-2409, 2013 Fla. LEXIS 1249 (Fla. June 3, 2013). Nonetheless, an ambiguity in what activities are contemplated by the language, the term or length of the agreement, and the conduct subject to the release can be fatal to the enforceability of exculpatory clauses. For example, in Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006) the defendants asserted the “release” applied to future “activity” while the language of the “release” itself was silent on that issue. The Cain case involved a membership at a motocross racetrack that contemplated future visits and “races.” In holding the “release” in Cain unenforceable, the Fifth District Court of Appeal stated as follows: The release itself contains no express language informing the plaintiff that it covered each and every occasion in the future that he visited the track. Given that exculpatory clauses are disfavored in the law and are strictly construed against the party seeking to be relieved of liability, Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (Fla. 3rd DCA 1998), those intended to encompass present as well as future events must state so with clarity and precision. The 1999 release contains no language providing for an effective period and the burden is on the party seeking to absolve itself from liability to do so in clear and unequivocal terms. Use of the plurals “races” or “ practices” in the release does not, in and of itself, clearly and unequivocally establish that the release applied to all future visits. One need not hail from Daytona Beach to know that multiple races or practices are frequently held at a racetrack over a single day. Banka argues that the circumstances surrounding execution of the 1999 release establish clearly that it was part of a membership program at the track and was designed and understood to last for as long as the plaintiff remained a member of the track. The plaintiff did not deny that he had been issued a membership card which was still operative and thus it was established that the plaintiff was part of a membership program used by the track. The 1999 release executed by the plaintiff, however, does not mention membership as part of execution of the release or that acceptance of a membership card created a release perpetual in nature. The defendant cites to no authority allowing a court to go beyond the four corners of the written release in order to supplement it with essential terms, whether by course of conduct, custom or otherwise. In fact, the law is otherwise-an exculpatory provision which is ambiguous is unenforceable. Sunny Isles Marina. The defendant’s effort to use the membership program to supplement the absence of an operative period in the 1999 release not only runs afoul of the principle which places the burden on a party seeking to absolve itself of liability to do so in clear and unequivocal terms, but it eliminates the need for a release, designed to apply to future conduct or activity, to contain clear language to that effect. Cain v. Banka, Id. at 580. Similarly, in Diodato v. Islamorada Asset Mgmt., 2014 WL 1696184 (Fla. 3d DCA, Apr. 30, 2014), the court commented upon the necessity that the scope and term of an exculpatory clause be unambiguous: In the case at hand, another aspect of contract interpretation comes into play as well. A release containing exculpatory language is part of a commercial transaction having a discernible scope and term. “Scope” would reasonably address the hazardous activity which the releasor has paid the releasee to allow him or her to undertake, and which the releasee insists must be at the releasor’s own risk if the activity is to proceed. “Term” would reasonably address the anticipated duration of the hazardous activity for which the release has been required and obtained. The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by the releasor when compared to another hazardous activity. The material terms of exculpatory clauses must be clear and unambiguous. Terms such as the scope, duration, and particular activities and risks that are contemplated to be subject to the agreement must be clear and understandable to the ordinary person. Ambiguities in material terms that leave and ordinary knowledgeable person to wonder the extent of rights they are waiving can result in the refusal of a court to enforce an exculpatory clause. Changes in circumstances surrounding the activities released can potentially render an exculpatory clause unenforceable. Changes in circumstances after the signing of a contract containing an exculpatory clause can render the clause unenforceable. For example, Cain suggested in dicta the importance of whether the condition of the premises in question was the same as it was when the “release” or other exculpatory clause was signed, stating as follows: If the purpose of the release was to cover all future times a person might be on the property, it should state the release applies each and every time the person is on the premises, or state that the release applies to all future entrances to the premises. Adding language suggesting the release applies for all future events would then clearly and unequivocally tell a person that they are not only releasing their rights for the day they signed it, but for anytime they return to the premises in the future. Signing away one’s rights for eternity should be stated more clearly than in the release signed by [the plaintiff]. Interestingly, the plaintiff does not rely directly on evidence that conditions at the track had materially changed between the date he executed the release and the date he sustained his injury, even though such evidence appears to exist. Banka himself testified in his deposition that he substantially reconfigured the track just prior to the date of the plaintiff’s accident. Nevertheless, even assuming materially unchanged conditions, we conclude that the language of the 1999 written release was not sufficiently clear and unequivocal to inform the plaintiff that he was executing a perpetual release of personal injury claims. Cain, Id. at 579, 580.[/sws_blockquote_endquote] This case reasoning suggests that a releasor cannot be “hoodwinked” into releasing claims in advance based upon a set of material circumstances, conditions, or risks that are changed later to his/her detriment. Changing the material circumstances, conditions or risks contemplated would amount to essentially changing the expectations of the releasor. It is reasonable to assume from this reasoning that a change of circumstances following the signing of a contract containing an exculpatory clause could easily render it unenforceable. Exculpatory agreements signed by parents are now enforceable against their children. Florida case law once held that a parent could not validly release in advance injury claims of minor children before the claims arose. Enforcing pre-injury releases signed by parents was considered against public policy in Florida. See Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008) and Claire’s Boutiques v. Locastro, 85 So.3d 1192, 1196 (Fla. 4th DCA 2012). In response to these cases and to intense business lobbying efforts, the Florida Legislature amended § 744.301, F.S. in 2012 to provide as follows: (3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity. (a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to: 1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and 2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents. (b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release: NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF ( name of released party or parties ) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM ( name of released party or parties ) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND ( name of released party or parties ) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM. (c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity. 1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection. 2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity. 3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence. (d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law. Now, parents can release, in advance, injury claims of their children if the releasee complies with the statutory requirements of § 744.301(3), F.S. and obtains the parents’ signature on an agreement that includes the above statutory language. Conclusion While parties can agree in writing to release in advance claims for personal injury or wrongful death, the law requires the terms and intent of any such agreement to be clear and unambiguous. The intent and material terms of the agreement must be such that an ordinary knowledgeable person would be able to understand at the time of signing exactly what they were waiving. Releasing claims of minors in such agreements requires compliance with Florida’s specifically applicable statutes. Melvin B. Wright is a personal injury attorney with Colling Gilbert Wright & Carter, www.TheFloridaFirm.com, in Orlando, FL. He practices in personal injury, wrongful death, motor vehicle and trucking liability, premises liability, medical malpractice, pharmacy negligence, nursing home negligence, insurance law, products liability, pharmaceutical liability, whistleblower/qui tam liability, and class actions.