Under the Florida Supreme Court’s recent decision in Sanislo v. Give Kids the World, Inc., 157 So. 2d 256 (2015), the answer to the title question is ‘probably, yes.’ In Sanislo, the Florida Supreme Court adopted the Fifth District Court of Appeal’s broad interpretation of pre-injury releases. In doing so, the Florida Supreme Court overruled the strict interpretation applied in the other four appellate districts for more than three decades, and gave new life to exculpatory agreements in Florida. Exculpatory clauses will not be interpreted under the same standards as an agreement to indemnify a party for its own negligence or liability. Under Sanislo, as long as the language of a release is ‘clear and understandable’ to an ordinary and knowledgeable person, the release is enforceable as a matter of law to bar a negligence claim. Even if the word “negligence” is not mentioned in the release
The underlying facts are straightforward. Plaintiff, Stacy Sanislo, was injured at the Give Kids the World Resort Village when a pneumatic lift on a horse-drawn wagon ride collapsed as her family was posing for a photograph. Plaintiff, her husband, and their seriously ill child were on a “storybook vacation,” sponsored by Give Kids the World, Inc., a non-profit organization. As part of the application process, the Sanislos filled out and signed a ‘wish request’ form, which contained language releasing ‘Give Kids the World’ from any liability for any potential cause of action. The language of the exculpatory clause in the release stated that Give Kids the World was released 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).” Defendant’s Motion for Summary Judgment on the basis of the release language was denied. After a jury verdict in Plaintiff’s favor, Defendant appealed the trial court’s summary judgment ruling.
On appeal, the Fifth DCA reversed the trial court’s denial of summary judgment, holding that this language was sufficient, as a matter of law, to bar Plaintiff’s negligence claim against Give Kids the World. Significantly, the negligence claim was barred despite the lack of any specific reference to the defendant’s own negligence or negligent acts in the release. The Florida Supreme Court reviewed the certified conflict of law between the Fifth DCA’s interpretation and the law as applied by the First, Second, Third, and Fourth Districts, ultimately siding with the Fifth DCA.
Prior to Sanislo, as applied in the First, Second, Third, and Fourth Districts, an exculpatory contract was interpreted according to the same principles as an indemnity contract. A party was not protected from liability for its own negligence unless clearly and unequivocally stated in the express language of the contract. See Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987) Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981) Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980). Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984). In addressing this conflict the Florida Supreme Court breathed new life into pre-injury releases or exculpatory clauses.
The Florida Supreme Court simplified the issue in Sanislo as whether the reasoning in University Plaza v. Stewart [which applies to indemnity provisions] should also be extended to exculpatory contracts. Plaintiff argued that the ‘clear and unequivocal’ standard in University Plaza should apply, because both indemnity agreements and exculpatory clauses “achieve the same result—abdication of responsibility for one’s own negligence.” Defendant argued that University Plaza should not apply because exculpatory agreements and indemnity agreements serve different purposes and, therefore, different standards of interpretation should apply. The Florida Supreme Court began its analysis with the general recognition that exculpatory contracts are disfavored as a matter of public policy because they relieve one party of the obligation to use due care, and therefore, such contracts must be clear and unambiguous to be enforceable. The Florida Supreme Court analyzed the development of case law interpreting contracts that indemnify a party for its own negligence, starting with University Plaza, and continuing through Charles Poe Masonry, and Cox Cable. Ultimately, the Florida Supreme Court determined that different principles applied to indemnity agreements than to exculpatory agreements and that University Plaza was not controlling. Looking also to out-of-state case law, the Court adopted the rule that when the exculpatory clauses are clear and unambiguous, the practice of enforcing these contracts between parties will be followed.
The Florida Supreme Court ultimately held:
Although we agree that it may be better practice to expressly refer to “negligence” or “negligent acts” in an exculpatory clause, we find that the reasoning employed by the states that do not require an express reference to render an exculpatory clause effective to bar a negligence action is more persuasive, particular in the context presented here . . . As a result, 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.
Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 258 (Fla. 2015)
For the reasons discussed below, we hold that an exculpatory clause is not ambiguous and, therefore, ineffective simply because it does not contain express language releasing a defendant from liability for his or her own negligence or negligent acts; such an approach could render similar provisions meaningless and fail to effectuate the intent of the parties.
Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 260 (Fla. 2015)
For the time being, this is an important victory for businesses that involve rides, amusements, or activities that require customers to sign a release or waiver. Although the Florida Supreme Court has lowered the bar for the language which must be included in a pre-injury release, the release still must be clear, not overly broad, and able to be understood by an ordinary person. Despite this lower threshold, it would still be prudent for businesses that use exculpatory clauses to include language specifically releasing them from their own negligence or negligent acts. This was a close 4-3 decision which suggests that exculpatory clauses may again be scrutinized by the Florida Courts. Thus, when drafting such a release, it would be better to be clear and specifically encompass the negligence of the entity to be released. Although the ultimate impact of Sanislo on liability waivers remains to be seen, at the time of this writing, the Florida Supreme Court has made Sanislo the law of the land.