In a recent decision, the Florida Supreme Court ruled that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to the release of the defendant for its own negligence or negligent acts. 

The case, Sanislo v. Give the Kids the World, Inc., (February 12, 2015) Supreme Court of Florida. No. SC12-2409, involved a negligence action against the defendant non-profit organization, which provided free storybook vacations to seriously ill children and their families at its resort village. The plaintiffs were the parents of a seriously ill child who had brought the child to the village.  When applying for the vacation, the plaintiffs filled out and signed a wish request form, which contained language that released the non-profit organization from any liability for any potential cause of action. After the wish was granted, the plaintiffs arrived at the resort village, and again signed a liability release form. While at the resort, Ms. Sanislo suffered injuries in an accident involving a horse drawn wagon ride. It was their contention that the accident was due to the defendant’s negligence. 

At the trial court level, the defendant filed a motion for summary judgment based upon the release that plaintiffs had signed. The trial court denied the summary judgment motion holding in effect that the language in the clause was insufficiently precise in that it did not make reference to “negligence” or “negligent acts.” Following a verdict in the plaintiffs’ favor, the Fifth District reversed the trial court's denial of the defendant's summary judgment motion, holding that an 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 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.'" Id. at 761 (quoting Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006)). The Fifth District also held that the 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 Give Kids the World or go on the vacation.

The lesson to be learned here is that you must carefully read these agreements when they are presented to you and carefully consider what rights you are contracting away.