Companies will often try to indemnify themselves from legal action by having patrons sign a wavier. This is especially common for those offering sports-related activities, amusement park rides or thrill-seeking ventures.
However, Florida case law over the years has evolved to support plaintiffs, particularly where waivers are broad and when clauses purport to deny a wronged party the right to recover damages from someone who negligently causes injury.
In this case, the plaintiff was injured while racing a Go-Kart in Orlando. According to the injured party, an employee of the Go-Kart company negligently increased the speed of the vehicle, causing her to lose control and crash hard into the railing.
The trial court ruled that a waiver signed by the plaintiff prior to getting into the vehicle precluded her negligence action, meaning her case was not allowed to move forward.
The appellate court, however, reversed.
The sole issue was whether the existence of that waiver meant the plaintiff had effectively signed away her right to pursue damages.
The language in the waiver required participants to agree that a certain degree of skill was necessary to navigate sharp curves. It also indicated that because the cars are controlled by individual drivers, mistakes and even intentional harm could result in injury, disability or death and that patrons “knowingly assume this risk.” It indicated any claims of personal injury or wrongful death resulting from operation of the Go-Karts would fall squarely on the shoulders of individual participants involved.
There was no indication in the waiver that patrons assumed the risk that employees could or would act recklessly or with negligence.
In weighing whether the trial court’s decision was appropriate, it first pointed to the rulings in UCF Athletics Ass’n v. Plancher (2013), Cain v. Banka (2006) and Sunny Isles Marina, Inc. v. Adulami (1998). In the Sunny Isles decision, extensive property damage at a boat storage facility occurred due to negligent storage of flammable materials by an employee. Despite a waiver signed by boat owners, the court found that the clauses were only enforceable to the extent that the language was highly specific and “so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.”
In the Plancher case, the family of a college football player who collapsed and died during football practice sued the university for damages. The school countered the athlete had signed a medical waiver prior to the season, and therefore the school couldn’t be held responsible for his death. The appellate court ruled that the exculpatory clause at issue did not expressly inform the student athlete that he was contracting away his right to sue the school for its negligence. Therefore, the waiver wasn’t enough to indemnify the school.
The same reasoning was applied in the Gillette case. Specifically, the language in the waiver was not so clear as to indicate the kind of negligence that occurred was intended to be covered.
Therefore, her case against the Go-Kart operator will be allowed to continue.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7770 for a free and confidential consultation. There is no fee unless we win.
Gillette v. All Pro Sports LLC, Jan. 24, 2014, Florida’s Fifth District Court of Appeal
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