Exculpatory Clauses: Disfavored, but Enforced
- United States
- 08/29/2008
Florida law disfavors exculpatory clauses because they relieve one party of the obligation to use due care and shift risk to a party probably less equipped to insure against the loss. There is a countervailing policy in favor of enforcement of contracts. The result is that exculpatory clauses are enforceable if they are clear and unequivocal. Deboer v. Florida Offroaders Driver’s Assoc., Inc., 622 So. 2d 1134 (Fla. 5th DCA 1993); Theis v. J&J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990). However, a release will still be enforceable even if it does not need to list each possible class of releasor or each possible manner in which the releasor could be injured during a dangerous event.
In Theis, the Second DCA held that language releasing defendants from “negligence” included all forms of negligence – including gross negligence. In Borden v. Phillips, 752 So. 2d 69 (Fla. 1st DCA 2000), the First DCA also found that a release for “negligence” covered both simple and gross negligence. Additionally, the court found that the release was clear and unambiguous and demonstrated the decedent’s understanding of the risks involved in the activity. It further showed the decedent’s intent to release the defendants from all liability, including that resulting from defendants’ own negligence.
While a release must be clear, it is not necessary for it to list each possible class of releasor or each possible manner in which the releasor could be injured during a dangerous event. If the language is sufficient to convey the potential danger and that the releasee will not be liable for injuries, that is sufficient to make the release clear. Deboer, 622 So. 2d at 1136.
Releases with regards to children are treated differently. In Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008), the court stated that exculpatory clauses signed on behalf of children in favor of commercial enterprises are unenforceable. However, dicta in that opinion implied that exculpatory clauses on behalf of children in favor of non-commercial enterprises may be enforceable due to different policy concerns in those cases. For additional information, contact Kate B. Munkittrick.
