Florida Appellate court throws out release signed by student-athlete who died because release was not written according to the requirements of Florida law.

Posted: October 9, 2023 | Author: Recreation Law | Filed under: Florida, Release (pre-injury contract not to sue), Sports | Tags: Exculpatory clause, Football, Negligence, Release, Stetson University, student athlete, Waiver |Leave a comment

Poorly written release that failed to stop claim by the family of a deceased scholarship athlete

Estate of Blakely v. Stetson Univ. (Fla. App. 2022)

State: Florida; Florida Court of Appeals, Fifth District

Plaintiff: THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE

Defendant: STETSON UNIVERSITY, INC

Plaintiff Claims:

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2022

Summary

Stetson University offered an athletic scholarship to the deceased. In return, he had to sign a release. He died during practice and his mother sued the school. The release was ineffective because it was not written correctly under Florida law.

Facts

Nicholas Blakely was a student and scholarship football player at Stetson in 2016 and 2017, his freshman and sophomore years in college. He pulled himself out of an afternoon football practice on August 28, 2017, complaining to an assistant athletic trainer that he was feeling dizzy and that his chest felt tight. The assistant athletic trainer took Blakely to the sideline, took his pulse,[1] gave him water to cool down, removed his helmet, loosened his shoulder pads, and had him stand in the shade. Trainers continued to monitor Blakely’s symptoms. However, after resting on the sideline for approximately forty to forty-five minutes, Blakely collapsed.

In addition to calling 911, Stetson employees attempted various emergency medical procedures in an unsuccessful effort to revive Blakely. Blakely was transported to the hospital, where he ultimately died.

There was record evidence that during an April 2017 practice, Blakely had complained to an assistant athletic director of chest pain. He also advised the trainer that he had experienced one or two incidents of chest pain in high school, but both of those incidents had resolved quickly. The chest pain incident of April 2017 also resolved in just a few minutes. The assistant athletic trainer did not document the April incident or otherwise do anything with the information provided by Blakely. Furthermore, when Blakely returned to school after summer break, Stetson did not have him undergo a physical examination prior to him participating on the football team for the upcoming season.

There is also record evidence that on the morning of August 28, 2017, the day Blakely died, Blakely advised the head football athletic trainer that he was not feeling well, that he had a bad cough, chest congestion, and shallow breathing. The trainer took Blakely’s temperature which was negative for fever. The trainer believed Blakely had a cold and did not refer him to the student health clinic. Blakely was permitted to continue participation in the planned activities for the day without restriction.

The defendant won the case at trial when the judge dismissed the case based on the release. The plaintiff appealed and the appellate court sent it back to the trial court.

Analysis: making sense of the law based on these facts.

Florida, like all states, has requirements for releases to be effective.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. They are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid the injury and bear the risk of loss. Such clauses are strictly construed against the party seeking to be relieved of liability. Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. The wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.

In this case, the release did not use the word release. That alone is not enough to make the release ineffective according to the court, but it is a major factor in looking at the document as a whole.

Although Florida has case law that states the word “negligence” is not needed in a release for the release to be effective. However, here the word negligence was not used and the court found nothing similar, as needed was used. Consequently, the court found the release was ineffective. The issue is was the release unambiguous.

In the present case, the exculpatory clause did not expressly inform Blakely that by executing the document at issue, he would be contracting away his right to sue Stetson for Stetson’s own negligence. Although this omission does not, standing alone, render the exculpatory clause unenforceable, it is a factor for a court to consider in determining whether the exculpatory clause is clear and unambiguous.

Here the court found two other problems with the release. The release had specific requirements the signor must fulfill in order for his scholarship to be provided. Combining multiple different terms or purposes into a release always provides the court with a way to say the release is not valid.

First, immediately preceding the exculpatory clause, Blakely was advised that it was important that he comply with Stetson’s medical staff’s instructions regarding, inter alia, conditioning and treatment and, indeed, was required to obey such instructions.

The court found this combination was fatal in this case.

As was stated in Plancher, this type of language, when coupled with a clause that does not expressly state that the athlete would be waiving a negligence action, could reasonably lead the athlete to believe that the university “would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport.

Since the language in the release had specific instructions on how the signor was supposed to act and rules to obey, the court found that narrowed the scope of the release to only those risks inherent in the sport.

The second issue the court found was the language in the release was limiting. In this case, the language said the signor only bound the signor, not the signor’s family. The term “for myself” was used rather than a broader term that would encompass more people.

Second, the final two sentences of the releases state that the releases serve as a release “for myself,” not “by” myself. Specifically, these sentences read, in relevant part: “[T]he terms hereof shall serve as a release and assumption of risk for myself . . .” and “The terms hereof shall serve as a complete release and waiver of liability for myself, . . . .” (emphasis added).

In Florida, as in all other states, contracts are construed against the person making the contract. That means that the person who creates the contract cannot win any argument that it was made properly, the terms will be examined in a way that the writer of the agreement loses that argument.

Those three factors, combined were enough to void the release.

As we have previously observed, exculpatory clauses are to be strictly construed against the party seeking to be relieved of liability. Here, Stetson’s Athletic Participation Release of Liability and Waiver of Liability form: 1) failed to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s own negligence, 2) used language that could reasonably lead one to believe that the university would be supervising and training properly so that he was only being asked to sign the exculpatory clause to cover injuries inherent in a sport, and 3) used language suggesting that the terms of the release were for Blakely’s benefit. The combination of these factors supports a determination that the exculpatory clause was not clear and unambiguous. As a result, we conclude that the exculpatory clause relied upon by Stetson is unenforceable and that the trial court erred in granting summary judgment in favor of Stetson.

There was also a cross-appeal, an appeal issue filed by the party who did not start the appeal, in this case, the university, that the university could not be held liable for gross negligence if the plaintiff amended its complaint to add gross negligence.

Under Florida law, a defendant can only be held liable for gross negligence if the plaintiff proves “the defendant was guilty of intentional misconduct or gross negligence.”

A Florida statute defines gross negligence.

Section 768.72(2)(b) defines “gross negligence” as conduct “so reckless or wanting in care that it can constitute a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”

After reviewing the claims of the plaintiff, the court found the claims argued were not backed up by facts and the plaintiff could not prove gross negligence.

There is record evidence that supports some of those allegations. However, taking the record evidence and proffered evidence in the light most favorable to Wilson, we conclude that Wilson has not met the threshold necessary to state a claim for punitive damages.

The Florida Supreme Court has placed a heavy burden on a party attempting to prove the other party was grossly negligent. Basically, the party accused of gross negligence has shown no deference to human life or acted in a way that the consequences were almost such that an injury would occur.

The Florida Supreme Court has stated that: “[t]he character of negligence necessary to sustain an award of punitive damages must be of a ‘gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.

Here the plaintiff could not prove and had not proven that level of carelessness on the part of the university.

So Now What?

It appears if the release had been written correctly and ONLY the language of a release in the agreement, the release would have stopped the lawsuit of the survivors.

The first issue you see all the time. Those are the releases that are argued at the appellate courts and recorded and then appear to be heard. You must hire an attorney to write your release who understands release law and the issues you face.

The second issue you also see all the time. Releases include language that the person will obey the rules or actually list the rules. Even found more frequently are releases where the signor is giving up more than just the right to sue, such as a photo release or a medical release in one document.

Releases are rising to the level of insurance policies. The body of law surrounding them and controlling them is separate and distinct from the law of contracts. Like an insurance policy, a release is a contract, but the relationship between the parties and the rights of the consumer creates burdens on the business offering the release that are much greater than a regular contract.

For more articles about releases under Florida law see:

Man sues kayak rental company after falling in Tampa Bay, allegedly catching flesh-eating bacteria

Whitewater rafting case where one of the claims is the employer should have provided eye protecting during the rafting trip.

One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.

Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.

Simple Florida camp case with final sentences that provide insight into how courts look at what influenced their decision.

Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

What do you think? Leave a comment.

Word Count: 2066

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

 To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract by clicking here and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

@2023 Summit Magic Publishing, LLC

G-YQ06K3L262

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

---