Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.Posted: July 3, 2016 Filed under: Florida, Release (pre-injury contract not to sue) | Tags: Contract, Go Kart, Negligence, Release Leave a comment
Release probably not written by an attorney and never had specific language that stated that the plaintiff’s claims for negligence would be barred by signing the agreement.
Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573
State: Florida, Court of Appeal of Florida, Fifth District
Plaintiff: Carol Ann Gillette
Defendant: All Pro Sports, LLC., D/B/A Family Fun Town
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the Plaintiff
This is a very short decision by the Florida appellate court about a release used in a Go Kart case.
The plaintiff crashed into the barrier suffering injuries. She claimed, “Appellee’s employee negligently increased the Go-Kart speed during a race, causing her to lose control of the Go-Kart and crash into the railing.”
Prior to riding the Go-Karts the plaintiff signed a release. The trial court dismissed the plaintiff’s claims because of the release. The plaintiff appealed, and the appellate court reversed finding the release did not meet the necessary requirements under Florida’s law.
Analysis: making sense of the law based on these facts.
The court put the entire release in its opinion and said under Florida, as in all other states, a contract is construed against the person who wrote it, or a release is construed against the person the release is supposed to protect. “Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.”
That means that the author bears the burden and the loss if the contract is written poorly. That applies to all contracts and releases. What that means, unless the parties agree in advance in the document, any mistakes in the document are held against the person who wrote the document.
Under Florida’s law, a release, a release must clearly state that the person signing it is giving up their legal right to sue. “To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.”
There was no language in the alleged release that specifically states the plaintiff is giving up their legal rights.
Here, the release does not expressly state that it includes Appellee’s negligence and, when the document is considered in its totality, it is not clear that negligence of the sort here was intended to be within the scope of the release.
There is language pointing out to the plaintiff that she cannot sue if she is injured due to the negligence of the defendant.
So Now What?
This was a simple case. The release was not a release. It did not have the necessary language to provide notice to people signing it that they were giving up their legal right to sue.
At the trial court, the defendant might still be able to win by using the failed release as an assumption of risk document. The assumption of risk document will be effective if the injury the plaintiff complains of is identified in the assumption of risk document as a risk the plaintiff agreed to assume.
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