25 Silva v. Cousins Club Corp.et al., Case No. 1991). 39 Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 587 (Fla. 4th D.C.A. An express assumption of risk where the participant acknowledges understanding the nature of the activity and the risks involved, and chooses voluntarily to accept those risks. City of Homestead v. Johnson, 760 So. 2d at 93, 94. It is also noteworthy that similar provisions declare illegal and unenforceable indemnification provisions that obligate one party to indemnify a public agency for its own negligence. 1997). If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages. Post-trial motions are pending before the court. As a result, the participant filed a lawsuit against the race promoters. For example, in one unreported trial court decision,25 a participant to a boxing match executed a “Release, Assumption of Risk and Indemnification Agreement” in favor of the owners and operators of the facility hosting the event.26 The agreement waived and released the owner from all “risks inherent in boxing.”27 During the boxing match the plaintiff sustained injuries and thereafter initiated a lawsuit against the owner for negligence arising from the owner’s failure to provide emergency post-injury medical treatment.28 The owner’s motion for summary judgment was denied based upon the fact that the agreement failed to specifically release and hold harmless the owner for his own negligence.29 Additionally, the agreement was devoid of any language applicable to events that arose following the fight.30 In that instance the agreement was strictly confined to “risks inherent in boxing” and nothing more. Buyer, to the extent permitted by law, is purchasing the Unit and its interest in the recreational facilities and common elements “AS IS” and should undertake whatever inspections of the Unit, common elements and recreational facilities Buyer so desires in order to assure Buyer as to the quality and condition of the buildings and improvements. How to Write an Assumption of Risk Clause. Your assumption of risk includes, but is not limited to, your use of any exercise equipment (mechanical or otherwise), sports fields, courts, or other areas, locker rooms, sidewalks, parking lots, stairs, pools, whirlpools, saunas, steam rooms, lobby or other general areas of any facilities, or any equipment. The court denied summary judgment because it was unclear whether the patron was deceived or misled by the raceway employee when instructed to sign a form where the release language was hidden from view.52 The holding in Parkham emphasizes that the party benefiting from the release must demonstrate that the injured party knowingly waived and released a known risk. 2d at 678. Assumption of Risk is a type of defense available for most personal injury and negligence lawsuits. The validity of such contracts is a separate issue from assumption of risk. When a patron fell from a mechanical bull ride due to the negligence of the defendant, the Fourth District Court of Appeal analyzed the scope of a release signed by the patron of “any and all claims, demands, damages and causes of acts whatsoever.”39 The court concluded that the release failed to include language manifesting an intent to release or indemnify the defendant for his own negligence.40, The Florida Supreme Court, in University Plaza Shopping Center, Inc. v. Stewart, 272 So. On this score, conspicuous means a larger type size, a different type style, e.g., bold or all capitals, or a different color.20 While this statute is not controlling beyond the sale of goods, the underlying rationale suggests that similar considerations would apply to exculpatory language utilized in other transactionssuch as those involving real estate.21, Intent of the Parties Is of Paramount Importance Intent of the parties is of paramount importance when determining the enforcement of disclaimers, waivers, releases of liability, and indemnification clauses.22 Exculpatory clauses although disfavored will be enforced if the intent to relieve a party of its own negligence is clear and unequivocal.23 In describing exculpatory language that will be enforced, one court stated, “The wording of such an agreement must be so clear and understandable that an ordinary and knowledgeable party to it will know what he is contracting away.”24. 1994); Newbury Square Development Corp. v. Southern Landmark Inc, 578 So. 2d 50 (Fla. 4th D.C.A. 40 Id. 2. 2d at 629 Although applicable to residential property the doctrine of “caveat emptor” remains applicable to the sale of commercial real estate. 38 Dilallo v. Riding Safety, Inc. 687 So. & Sports L. Rev. 1978), the court instructed as follows: “We must require draftsmen of all contracts which contain them [exculpatory clauses] to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses.” 2 Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. 2d 11 (Fla. 4th D.C.A. 65 Id. 12 John’s Pass Seafood Co. v. Weber, 369 So. 2d at 446. 1980); Ivey Plants, Inc. v. F.M.C. Assumption of risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm connected with the negligence of the defendant. 2d at 948. 1975); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, Inc., 427 So. The risks include, but are not limited to, those ... so long as the clause severed does not affect the intent of the parties. 2d 441, 446 (Fla. 4th D.C.A. 2d 507 (Fla. 1973); Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2d D.C.A. 2d 29 (Fla. 2000). L.J. 17, General Rules for Drafting Exculpatory Clauses At the heart of every analysis over enforcement of an exculpatory clause lies the issue of conspicuousness of the language employed. 2d 943 (Fla. 2d D.C.A. For an excellent discussion of public policy considerations, see Mario R. Arango and William R. Trueba, Jr., The Sports Chamber: Exculpatory Agreements Under Pressure, 14 U. Miami Ent. 1 University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 487 (Fla. 1979). In most instances, courts generally will bar a party from recovering damages when an executed waiver or release of liability acknowledges the risk sought to be limited or extinguished.54, In Theis v. J & J Racing Promotions, 571 So. 44 Id. v. Radio Station WQBA, 731 So. This duty is equally applicable to all forms of real property, new and used.”480 So. at 508. Toward that end, valid clauses must be drafted in a clear and unequivocal manner. 68 Id. 29 Id. denied, 289 So. Banfield, 589 So. 2d at 444. However, from a practical standpoint, utilization of the word “negligence” should increase the likelihood of enforcement. Checklist for Drafting Enforceable Exculpatory Clauses The following checklist for drafting exculpatory clauses has been compiled based upon the statutory and case law referenced in this article: 1) The exculpatory language of the clause should be bold and conspicuous through the use of larger type, boldfaced type or a special color, e.g., do not be reluctant to draw attention to exculpatory clause. 3) Broadly identify the extent of the risks involved, i.e., it is important to make clear whether the exculpatory language is for all risks that might arise. Such liability as herein set forth is fixed as liquidated damages and not as a penalty and this liability shall be complete and exclusive. 71 11 U.S.C. Express Assumption of risk/Waiver/Exculpatory clauses 1 In the Restatement (Second) of Torts, the discussion regarding express assumption of risk is explained is follows: “[t]he risk of harm from the defendant’s conduct may be assumed by express agreement between the parties. 54 Banfield, 589 So. 2d 353 (Fla. 4th D.C.A. §83.47 (1977); see John’s Pass Seafood Co v. Weber, 369 So. 2d 80 (Fla. 2000); Seifert v. U.S. Home Corp., 750 So. Courts disfavor these clauses absent clear and unequivocal language expressing the intent of the parties. 55 Theis, 571 So. Legislation and Public Policy Considerations Limit Enforcement of Exculpatory Clauses Exculpatory clauses will be enforced as long as the language is clear and unequivocal.1 These same concepts apply to indemnification agreements, which shift liability for damages to another party, and to releases of liability.2 On the other hand, exculpatory clauses that extinguish liability for intentional torts or reckless harm will generally be declared null and void.3, Florida statutes prohibit the use of exculpatory clauses in certain transactions such as residential lease agreements that disclaim or limit a landlord’s liability to a tenant for breach of the implied warranty of habitability;4 condominium documents that disclaim liability for breach of the statutory implied warranties of fitness and merchantability to a purchaser of a new condominium;5 agreements that waive the right to assert a construction lien law claim in advance of improving real property;6 indemnification provisions in construction contracts that encompass claims or damages resulting from gross negligence, willful, wanton, or intentional misconduct, or for statutory violations.7 Likewise, a clause in a fee agreement that exculpates or limits the liability of an attorney for his own negligence to avoid a claim for legal malpractice is prohibited.8. All rights reserved. The jury returned a verdict in excess of $12,000,000 in favor of the plaintiff. Assumption of the Risk and Waiver of Liability Relating to Coronavirus/COVID-19 The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. §672.316 (2001). 2d 168 (Fla. 1991); Tout v. Hartford Accident and Indemnity Co., 390 So. 2d 441 (Fla.4th DCA 1991), in which a participant to the 1985 Bud Light United States Triathlon Series competition completed and executed an official entry form stating “I understand that this waiver includes any claims based on negligence, action or inaction of the above parties.”59 During the competition, the participant, while riding a bicycle, was struck by an automobile and sustained injuries. Tenant’s Assumption of Risk and Waiver. However, the general rule of contract construction is that an ambiguous clause will be construed against the drafter. Toward that end, the form containing the exculpatory language should be dated and witnessed. 2) Specify in the document that you are seeking to obtain a releasing for your own negligence and specifically use the word “negligence.”. Fla. Stat. DISCLOSURE OF INFORMATION BY OWNER ABOUT HORSES TO BE TRAINED is hereby stated as follows: 1. Tenant’s Assumption of Risk and Waiver. 27 Id. It’s harder for a defendant to prove there was a primary implied assumption of risk since there aren’t any legal documents to show the court. In Orkin Exterminating Co. v Montagano, 359 So. Miscellaneous Clauses Although not technically exculpatory clauses, various language is frequently included in agreements to discourage parties from asserting their rights. Mr. THERE ARE ABSOLUTELY NO IMPLIED WARRANTIES OF ANY KIND COVERING THIS PROPERTY. Consequently, the impact is the same, namely, a disclaimer of liability. Florida courts have failed to squarely address whether the common law implied warranty associated with a real estate transaction can be disclaimed. 4 0 obj See The Florida Bar In Re Herman Cohen, 331 So. 9) The document containing the exculpatory language should be properly executed and witnessed. 8) Courts are more inclined to enforce monetary limitations on liability as opposed to extinguishing liability. 1975). 53 See also Lantz v. Iron Horse Saloon, Inc. 717 So. However, the failure to appreciate the legal requirements that trigger enforcement of these clauses can spell financial disaster. 1995), Florida Power & Light Co. v. Mid-Valley, Inc.., 736 F.2d at 1316 (11th Cir. Frequently, these agreements contain a provision that stipulates that the document is the joint product of the parties. Lesser is a shareholder in Becker and Poliakoff, P.A., Ft. Lauderdale, where he devotes his practice exclusively to construction law and litigation. The best clauses are simple and direct. Situations that encompass assumption of the risk have been classified in three broad categories. 1989), rev’d, 551 So. Against this factual backdrop, the court barred recovery, holding that the above clause was clear and unequivocal to release the race promoters from their own negligence.60, In a line of burglar alarm cases, exculpatory clauses utilized to defeat claims for consequential losses have been upheld against claims of breach of contract and gross negligence.61 For example, in L. Luria & Son, Inc. v. Alarmtec International Corp., 384 So. 2d 616, 617 (Fla. 2d D.C.A. In a similar context, the Fourth District Court Of Appeal in Travent Ltd v. Schecter, 718 So. 7) Draft the document to provide an option to the person accepting the risk to elect to acquire more protection by paying additional fees. The form was folded over concealing the upper half of the document where the printed exculpatory language appeared.47 As a result, the critical language was not visible when the patron executed the document.48 The language released the raceway from “all liability in the event of an injury to a signatory in any restricted area.”49 Thereafter, the patron was struck by a racecar and initiated a lawsuit against the raceway.50 In response, the raceway defended based upon the existence of the patron’s signature on the release.51. 6) When feasible, make sure that a person with authority to speak for the organization is available to explain the risks to the other party. 63 Valhal Corp. v. Sullivan Associates, Inc. 44 F.3d 195, 198 (3d Cir. The drafter should be mindful of statutory prohibitions applicable to exculpatory clauses. 16 Rapallo South, Inc. v. Jack Taylor Development Corp., 375 So. 1983). 36 Id. The language released the operator from liability “whether caused by negligence or otherwise.” 56 Theis, 571 So. Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement I understand that all extra-curricular activities have a certain degree of inherent risk, which includes known and unknown risks. at 443. 2d 943 (Fla. 2d DCA 1982), the court addressed whether the implied warranty of habitability in the package sale of a new home and lot by a builder-vendor to an original purchaser could be disclaimed.13 In considering this issue the court commented as follows: Following the lead of Hesson, another court acknowledged that an “implied warranty can be avoided by a disclaimer in the documents of the sale transaction.” In re Barrett Home Corp. , 160 B.R. Pass Seafood Co v. Weber, 369 So to enforce disclaimers of implied warranties prepared solely the... Those risks inherent in the sport itself 750 So this factor found the in... 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