exculpatory clause in Florida

2018Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144, 1146 (Fla. 2d DCA 1981), disapproved on other grounds by Sanislo, 157 So. 3d at 271 . 10 CONCLUSION In a single clause, Jewelry Exchange purported to absolve itself of all liability for loss or damage while at the same time agreeing that its “sole liability” was “limited to the exercise of ordinary care to prevent the opening of the vault by any person other than lessee or the authorized agent of the lessee.” As in Murphy, Brooks and Goyings, this latter provision would be rendered meaningless if we were to construe the exculpatory clause

2015Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So.2d at 578 ); see Levine, 516 So.2d at 1103 (“The rule is that an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So.2d at 1146 (same).

2021Brooks states: “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So. 2d 270, 272 (Fla. 4th DCA 2002) (quoting O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446 (Fla. 5th DCA 1982)).

2017“An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So.2d 270, 272 (Fla. 4th DCA 2002) (quoting O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. 5th DCA 1982)).

2022On appeal, the Fifth District held “the exculpatory clause is obviously unenforceable to the extent that it attempts to release [the defendant] of liability for an intentional tort.” Id. at 760 .

2022However, the holding in Loewe v. Seagate Homes, Inc., 987 So. 2d 758 (Fla. 5th DCA 2008), which considered whether an exculpatory clause that purported to release a contractor from 6 liability for failure to comply with building codes was against public policy, is instructive.

2013In other words, the language in the release did not bar recovery for injuries from the defendant’s active negligence because there was no express statement that encompassed negligence of a party that would not necessarily inhere in the sport of horseback riding. 20 See also Hardage Enters., Inc., 570 So.2d at 438 (Fla. 5th DCA 1990) (distinguishing O’Connell by the lack of restrictive language in the exculpatory clause).

2012Similarly, in Hardage Enterprises, this Court found that an exculpatory clause in an agreement entered into by the owner of a hotel complex and a construction manager of the complex was enforceable because its language was unambiguous and the parties were not in a position of unequal bargaining power. 570 So.2d at 438 .

2015Levine, 516 So.2d at 1103 ; Van Tuyn, 447 So.2d at 320 ; Goyings, 403 So.2d at 1146 (reasoning that “This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability.”); and Tout, 390 So.2d at 156 (citing Ivey Plants, 282 So.2d at 209 (relying on University Plaza to conclude that the language in the indemnification agreement did not preclude maintenance of an action predicated on the alleged negligence of the defendant)).

2006In Ivey, the Fourth District determined that the exculpatory clause, which was not italicized in the agreement and stated that the appellee would not be liable for damages even if the damages resulted from its own neglect, was separate and distinct from the indemnification clause, which was italicized in the agreement and failed to specifically mention negligence. 282 So.2d at 207-08 .

2022Plancher, 121 So. 2d at 1101, 1102; see also Sanislo, 157 So. 3d at 271 (“Despite our conclusion [that an exculpatory clause can be effective to bar a negligence action despite the absence of expressed language referring to the release of the defendant for its own negligence], we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions.”).2 2 In its answer brief, Stetson argues that the Florida Supreme Court’s decision in Sanislo renders “meaningless” the absence of the words “negligent” or “negligent acts.” We reje

2022Although this omission does not, standing alone, render the exculpatory clause unenforceable, see Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 7 2015), it is a factor for a court to consider in determining whether the exculpatory clause is clear and unambiguous.

2021Brooks states: “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So. 2d 270, 272 (Fla. 4th DCA 2002) (quoting O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446 (Fla. 5th DCA 1982)).

2017“An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So.2d 270, 272 (Fla. 4th DCA 2002) (quoting O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. 5th DCA 1982)).

1973For example, where the relative bargaining power of the contracting parties is not equal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position, enforcement of the exculpatory clause has been denied. 175 A.L.R., supra, p. 16; Danna v. Con Edison Co., Inc. supra. [4] Ascertaining the relative *209 bargaining positions of the contracting parties requires a consideration of material issues of fact which, of necessity, would preclude the entry of summary judgment. [5] With respect to the indemnity clause aspects of paragraph 16, such prov

1973The indemnity clause or contract simply affects a *208 change in the person who ultimately has to pay for the damages, i.e., the promisor (indemnitor) in an indemnity contract undertakes to protect the promisee (indemnitee) against loss or damage through a liability on the part of the latter to a third person. 175 A.L.R. 8 , 21; Royal Indemnity Co. v. Knott, 1931, 101 Fla. 1495 , 136 So. 474 ; cf. University Plaza Shopping Center v. Stewart, Fla. 1973, 272 So.2d 507 ; Middleton v. Lomaskin, Fla.App. 1972, 266 So.2d 678 ; Poche v. Leon Motor Lodge, Inc., Fla.App. 1973, 275 So.2d 55 . [1] Under

2022As was stated in Plancher, this type of language, when coupled with a clause that does not expressly state that the athlete would be waiving a negligence action, could reasonably lead the athlete to believe that the university “would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport.” Plancher, 121 So. 3d at 1102 ; see also Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565 , 568– 69 (Fla. 2d DCA 2008) (holding where waiver expressly releasing

2021Brooks, 219 So. 3d at 887 (invalidating an exculpatory clause when disclaimer was qualified by a statement that the surgeon would “do the very best to take care of [the patient] according to community medical standards”); Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565, 566-68 (Fla. 2d DCA 2008) (finding ambiguity when the exculpatory clause excluded “any claims based on negligence” but also provided that YMCA would take “every reasonable precaution” and concluding that a reasonable reader might be led to believe that the waiver of liability extended only to claims fo

2021Brooks, 219 So. 3d at 887 (invalidating an exculpatory clause when disclaimer was qualified by a statement that the surgeon would “do the very best to take care of [the patient] according to community medical standards”); Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565, 566-68 (Fla. 2d DCA 2008) (finding ambiguity when the exculpatory clause excluded “any claims based on negligence” but also provided that YMCA would take “every reasonable precaution” and concluding that a reasonable reader might be led to believe that the waiver of liability extended only to claims fo

2020In Brooks, we invalidated an exculpatory clause in an agreement between a surgeon and patient because the language was unclear and ambiguous. 219 So. 3d at 891 .

2015In Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384-85 , 461 N.Y.S.2d 746 , 448 N.E.2d 413 (N.Y.1983), the New York Court of Appeals established the standard for a finding of gross negligence under an exculpatory clause.

2015In Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384-85 , 461 N.Y.S.2d 746 , 448 N.E.2d 413 (N.Y.1983), the New York Court of Appeals established the standard for a finding of gross negligence under an exculpatory clause.

2015Levine, 516 So.2d at 1103 ; Van Tuyn, 447 So.2d at 320 ; Goyings, 403 So.2d at 1146 (reasoning that “This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability.”); and Tout, 390 So.2d at 156 (citing Ivey Plants, 282 So.2d at 209 (relying on University Plaza to conclude that the language in the indemnification agreement did not preclude maintenance of an action predicated on the alleged negligence of the defendant)).

2015Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So.2d at 578 ); see Levine, 516 So.2d at 1103 (“The rule is that an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So.2d at 1146 (same).

2011Goeden v. CM III, Inc., 756 So.2d 1105, 1106 (Fla. 3d DCA 2000) (quoting Banfield v. Louis, 589 So.2d 441, 446 (Fla. 4th DCA 1991)).

2001See Borden v. Phillips, 752 So.2d 69 (Fla. 1st DCA 2000); Banfield v. Louis, 589 So.2d 441 (Fla. 4th DCA 1991).

2015Apple-gate, 974 So.2d at 1114 (citing Cain, 932 So.2d at 578 ); see Levine, 516 So.2d at 1103 (“The rule is that an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So.2d at 1146 (same).

2015Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So.2d at 578 ); see Levine, 516 So.2d at 1103 (“The rule is that an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So.2d at 1146 (same).

1989In the case of Orkin Exterminating Company v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978), the Fourth District held that a homeowner was entitled to recover for termite damages from an exterminating company despite the fact that the homeowner had signed a contract containing an exculpatory clause limiting the exterminating company's damages liability.

1989The court stated that "because we do not look with favor on exculpatory clauses, we must require the draftsmen of all contracts which contain them to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses." Orkin Exterminating Company v. Montagano, 359 So.2d at 514 .

1974Based upon this provision and the recent decision in Middleton v. Lomaskin, Fla.App. 1972, 266 So.2d 678 , upholding a similar exculpatory clause, a final summary judgment was entered from which this appeal ensues.

1973The indemnity clause or contract simply affects a *208 change in the person who ultimately has to pay for the damages, i.e., the promisor (indemnitor) in an indemnity contract undertakes to protect the promisee (indemnitee) against loss or damage through a liability on the part of the latter to a third person. 175 A.L.R. 8 , 21; Royal Indemnity Co. v. Knott, 1931, 101 Fla. 1495 , 136 So. 474 ; cf. University Plaza Shopping Center v. Stewart, Fla. 1973, 272 So.2d 507 ; Middleton v. Lomaskin, Fla.App. 1972, 266 So.2d 678 ; Poche v. Leon Motor Lodge, Inc., Fla.App. 1973, 275 So.2d 55 . [1] Under

2015Levine, 516 So. 2d at 1103 ; Van Tuyn, 447 So. 2d at 320 ; Goyings, 403 So. 2d at 1146 (reasoning that “This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability.”); and Tout, 390 So. 2d at 156 (citing Ivey Plants, 282 So. at 209 (relying on University Plaza to conclude that the language in the indemnification agreement did not preclude maintenance of an action predicated on the alleged negligence of the defendant)).

2015Levine, 516 So.2d at 1103 ; Van Tuyn, 447 So.2d at 320 ; Goyings, 403 So.2d at 1146 (reasoning that “This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability.”); and Tout, 390 So.2d at 156 (citing Ivey Plants, 282 So.2d at 209 (relying on University Plaza to conclude that the language in the indemnification agreement did not preclude maintenance of an action predicated on the alleged negligence of the defendant)).

2015This case is before the Court for review of the decision of the Fifth District Court of Appeal in Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), in which the Fifth District held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts.

2015This case is before the Court for review of the decision of the Fifth District Court of Appeal in Give Kids the World, Inc. v. Sanislo, 98 So.3d 759 (Fla. 5th DCA 2012), in which the Fifth District held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts.

2013Although the other districts have adopted a “bright line” rule requiring such express language, Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61 (Fla. 2d DCA 2005); Witt v. Dolphin Research Ctr., Inc., 582 So.2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am.

2009In support of this argument, Abis relies on a case which holds that for an exculpatory clause to be enforceable, “ ‘it must clearly state that it releases the party from liability for his own negligence.’ ” Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61, 66 (Fla. 2d DCA 2005) (quoting Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144, 1146 (Fla. 2d DCA 1981)).

2009Co., 523 So.2d 791, 793 (Fla. 2d DCA 1988), approved, 542 So.2d 957 (Fla.1989)); see also, 11 Fla. Jur.2d Contracts § 126 (“[W]here public policy would be frustrated by permitting the enforcement of an exculpatory clause that effectively immunizes a party from liability from breach of a positive statutory duty to protect the well-being of others, the exculpatory clause will not be enforced.”); Torres v. Offshore Professional Tour, Inc., 629 So.2d 192, 194 (Fla. 3d DCA 1993) (same); John’s Pass Seafood Co. v. Weber, 369 So.2d 616, 618 (Fla. 2d DCA 1979) (same).

1984Cf. John's Pass Seafood Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA 1979) (it would be contrary to public policy to enforce an exculpatory clause that attempts to immunize one from liability for breach of a positive statutory duty); Mankap (exculpatory clauses relating to fraud or intentional misrepresentation are contrary to public policy and unenforceable).

2000Banfield v. Louis, 589 So.2d 441, 446 (Fla. 4th DCA 1991) ( citing Tunkl v. Regents of the University of California, 60 Cal.2d 92 , 32 Cal.Rptr. 33 , 383 P.2d 441, 445-46 (1963)).

2000Banfield v. Louis, 589 So.2d 441, 446 (Fla. 4th DCA 1991) ( citing Tunkl v. Regents of the University of California, 60 Cal.2d 92 , 32 Cal.Rptr. 33 , 383 P.2d 441, 445-46 (1963)).

1981See, e.g., Thomas Awning and Tent Co. v. Toby's Twelfth Cafeteria, Inc., 204 So.2d 756 (Fla. 3d DCA 1967).

1973For example, where the relative bargaining power of the contracting parties is not equal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position, enforcement of the exculpatory clause has been denied. 175 A.L.R., supra, p. 16; Danna v. Con Edison Co., Inc. supra. [4] Ascertaining the relative *209 bargaining positions of the contracting parties requires a consideration of material issues of fact which, of necessity, would preclude the entry of summary judgment. [5] With respect to the indemnity clause aspects of paragraph 16, such prov

2024On appeal, Flying Panda argues that it was the arbitrator’s role, not the trial court’s, to consider whether the exculpatory clause was valid. 1 See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 , 445-46 (2006) (“[U]nless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.”).