Florida Supreme Court Holds That Exculpatory Clauses Are Not Required To Include The Terms “Negligence” Or “Negligent Acts” In Order To Bar A Negligence Action

by Fowler White Burnett, P.A.

The Supreme Court of Florida in Sanislo v. Give Kids the World, Inc., --- So. 3d ----, 2015 WL 569119 (Fla. Feb. 12, 2015), distinguished indemnity agreements from exculpatory clauses and declined to apply the specificity requirements it imposed in the indemnity context, over 40 years ago in University Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973), to exculpatory clauses. Notably, there was a 4-3 split between the court’s judges.

Under University Plaza and its progeny, an indemnitee may not be indemnified for its own negligence unless the indemnity agreement clearly and unequivocally states that the indemnitor will indemnify the indemnitee for its sole and/or joint “negligence” or “negligent acts.”

In Sanislo, the parents of an ill child filed a negligence action against the non-profit organization that provided free vacations to seriously ill children and their families. The parents sought to recover damages for the physical injuries sustained by the child’s mother when a wheelchair lift collapsed at the defendant’s resort village. In response, the defendant non-profit organization asserted release as an affirmative defense.

The defendant moved for summary judgment on the basis that the plaintiffs’ suit was barred by the wish request and liability release forms they signed which contained language releasing the organization from any liability for any potential cause of action. The plaintiffs also moved for summary judgment on the release issue. The trial court granted the plaintiffs’ motion and denied the defendant’s motion. The case proceeded to trial and the jury returned a verdict in favor of the plaintiffs.

On appeal, the Fifth District reversed the trial court’s denial of the defendant’s motion for summary judgment, holding that the exculpatory clause releasing the defendant from liability for “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us” barred plaintiffs’ negligence action despite the lack of a specific reference to “negligence” or “negligent acts” in the exculpatory clause.

The district court certified that its decision was in direct conflict with the decisions of the First, Second, Third, and Fourth District Courts of Appeal, which had each held that exculpatory clauses are ineffective to bar a negligence action unless there is express language releasing the defendant for its own negligence or negligent acts.

The Supreme Court approved the Fifth District’s decision in Sanislo and disapproved of the decisions of the other four district courts. The Sanislo court stated 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. Application of such a bright-line and rigid rule would tend to not effectuate the intent of the parties and render such contracts otherwise meaningless.” Id., at *11.

By the same token, the court stressed that its “holding is not intended to render general language in a release of liability per se effective to bar negligence actions. As noted previously, exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care.” Id., at *12. Based on that reasoning, the Supreme Court in Sanislo concluded “that the absence of the terms ‘negligence’ or ‘negligent acts’ in an exculpatory clause does not render the agreement per se ineffective to bar a negligence action.” Id., at *13.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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