No Free Lunch (or Vacation) – Florida Supreme Court Confirms Decision to Enforce Release Despite Lack of “Negligence” Language (FL)


Sanislo v.Give the Kids the World, Inc. (Florida)

The defendant non-profit organization provided free vacations to seriously ill children and their families.  The plaintiff went with her ill child on one of the defendant’s vacations, and she suffered an injury when a wheelchair lift collapsed at a resort village.  The plaintiff filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment based upon a both release of liability that was included in in the wish request form filled out by the plaintiff and a liability release form signed by the plaintiff after she arrived at the resort village.  Plaintiff countered with her own motion for partial summary judgment on the defendant’s affirmative defense of release.  The trial court granted the plaintiff’s motion and denied the defendant’s motion, and the case proceeded to trial.

Following a jury verdict, a judgment was entered in plaintiff’s favor in the amount of $55,443 in damages and $16,448 in costs.  Defendant appealed, arguing that the trial court erred by denying its pretrial motion because the releases were unambiguous and did not contravene public policy.  Florida’s Fifth District Court of Appeal reversed the trial court’s denial of the defendant’s motion, holding that plaintiff’s negligence action was barred by the release despite the lack of a specific reference to “negligence” or “negligent acts” in the exculpatory language.  The Court of Appeal “reasoned that exculpatory clauses are effective if the wording of the exculpatory clause is clear and understandable so that an ordinary and knowledgeable person would know what he or she is contracting away, and that the court had previously rejected ‘the need for express language referring to release of the defendant for ‘negligence’ or ‘negligent acts’ in order to render a release effective to bar a negligence action.’”  The Court of Appeal further concluded that the bargaining power of the parties did not need to be considered because the incident was “outside of the public utility or public function context” and the plaintiffs “were not required to request a vacation with [the defendant] or go on vacation.”

Due to a certified direct conflict among Court of Appeal decisions on the issue, the Florida Supreme Court reviewed the decision.  The Supreme Court reviewed prior Florida decisions and out-of-state precedent, with a majority of the Court eventually concluding that “it may be better practice to expressly refer to ‘negligence’ or ‘negligent acts’ in an exculpatory clause,” but “the reasoning employed by the states that do not require an express reference to render an exculpatory clause effective to bar a negligence action is more persuasive.”  The majority of the Court also noted that it was “reluctant to hold that all exculpatory clauses that are devoid of the terms ‘negligence’ or ‘negligent acts’ are ineffective to bar a negligence action despite otherwise clear and unambiguous language indicating an intent to be relieved from liability in such circumstances.”  Applying a “bright-line and rigid rule would tend to not effectuate the intent of the parties and render such contracts otherwise meaningless.”  That being said, the Court clarified that the ruling was “not intended to render general language in a release of liability per se effective to bar negligence actions.”  Exculpatory contracts “are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care.”

The majority of the Court approved the Fifth District Court of Appeal decision in favor of the defendant, with three three justices dissenting.

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