Understanding Exculpatory Clauses

By Julie A. Tyk, JD.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006). They are 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. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008). Such clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998). Thus, exculpatory clauses are enforceable, only where, and to the extent, that 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). 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 (Fla. 3d DCA 2001)).

The seminal Florida case on exculpatory clauses is the Florida Supreme Court case of Sanislo v. Give Kids The World, Inc., 157 So. 3d 256 (Fla. 2015). Give Kids the World, Inc. (“GKTW”) provided free vacations to seriously ill children and their families. When applying for the vacation, the Sanislos executed a “wish request” form that contained a waiver of liability, also known as an exculpatory clause. When the parents arrived at the resort village they again signed a liability release form, also an exculpatory clause. The language of the exculpatory clause is reprinted below for reference:

I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants, and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind....

I/we further agree to hold harmless and to release Give Kids the World, Inc. from and against 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....

Sanislo at 258-259.

While participating in a horse-drawn wagon ride, a rear pneumatic lift designed to allow those in wheelchairs to participate failed, and Ms. Sanislo was injured. The Sanislos brought suit and GKTW filed a motion for summary judgment arguing that the signed releases precluded an action for negligence. The Sanislos filed a motion for partial summary judgment against GKTW’s affirmative defense of release. The trial court granted the Sanislo’s motion and denied GKTW’s motion. The jury found for the Sanislos and GKTW appealed. Id.

The Fifth District reversed, finding the lower court erred in denying GKTW’s motion for summary judgment because the release signed by the Sanislos was unambiguous and did not contravene public policy. It ruled the exculpatory clause barred the negligence action despite the lack of a specific reference to “negligence” or “negligent acts” in the exculpatory clause.

The Fifth District 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.’ ” On the public policy argument, the Court said the relative bargaining power of the parties should not be considered because it was outside of the public utility or public function context and the Sanislos were not required to request a vacation with GKTW or go on the vacation. Id.

In affirming the Fifth District’s decision, the Supreme Court wrote that the conflict for the Court’s resolution was “whether an exculpatory clause is ambiguous and thus ineffective to bar a negligence action due to the absence of express language releasing a party from its own negligence or negligent acts.” Id. at 260.

The Florida Supreme Court wrote:

.... we are 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 270.

The Court found that the GKTW liability release form released GKTW and all of its agents, officers, directors, servants and employees from “any liability whatsoever in connection with the preparation, execution and fulfillment of said wish…” The release then provided that the scope of the agreement included “damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind . . . .” The Court found that the release clearly conveyed that GKTW would be released from any liability, including negligence, for damages, losses, or injuries due to transportation, food, lodging, entertainment and photographs. Id.

The determination of whether an exculpatory clause is en- forceable will be determined by the Judge as the enforceability of a pre-injury release is a question of law. The enforceability therefore, will depend on the Judge assigned to the matter. Physicians should not assume that because a patient signed a liability release form the patient does not have a viable cause of action. Physicians should consult with an experienced attorney who can examine the facts of the case and help you determine the best path forward. The Health Care Practice Group at Pearson Doyle Mohre and Pastis, LLP is committed to assisting Clients in navigating and defending medical malpractice claims. For more information and assistance, please contact David Doyle and Julie Tyk at Pearson Doyle Mohre & Pastis, LLP.

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Julie A. Tyk, JD, is a Partner with Pearson Doyle Mohre & Pastis, LLP. Julie concentrates her practice in medical practice defense litigation, insurance defense litigation and health care law. She has represented physicians, hospitals, ambulatory surgical centers, nurses and other health care providers across the state of Florida. She may be contacted by calling (407) 951-8523; jtyk@pdmplaw.com..