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

Plaintiff was injured during a corporate team building exercise when she ended up with a small rock in her eye after the whitewater rafting trip.

Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631

State: Florida, United States District Court for the Middle District of Florida, Tampa Division

Plaintiff: Carmen Elena Monteilh Chavarria

Defendant: Intergro, Inc., Timothy Dolan, Felix Renta

Plaintiff Claims: negligence, for intentional infliction of emotional distress, and for breach of contract

Defendant Defenses:

Holding: Mostly for the Defendants

Year: 2018

Summary

A whitewater rafting trip in Honduras booked as a team-building event ended up in litigation in the US. The allegations were the corporation that booked the team building for its employees failed to provide the necessary safety equipment for whitewater rafting.

The allegations may be taken to allege there is a higher duty owed to employees of a corporation partaking in a sport or recreation event then to other participants. The duty of the raft company appears to remain the same. Only employers are argued to have a requirement of higher standards of care.

Facts

Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. The plaintiff alleges that both Intergro and Seproma3 “conduct-ed” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”

After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye.

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

There were legal discussions about what law applied and other items that won’t be discussed here. It is unclear how a Honduran corporation, and a raft trip in Honduras ended up in a Florida Federal District Court.

The court was succinct in its analysis of the law and facts. The plaintiff argued the defendants were negligent.

To state a claim for negligence, a plaintiff must allege that the defendant owed the plain-tiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage.

According to the plaintiff, there was a duty of the employer, Integro not to select the rafting event and to: “provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.”

The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; that the breach caused her injury; and that she has suffered actual damages as a result of the defend-ants’ negligence. The plaintiff states a claim for negligence.

The next argument made by the plaintiff was a claim for intentional infliction of emotional distress.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. The standard for outrageous conduct is distinctly high

The court dismissed this claim finding the plaintiff failed to allege any instances of outrageous, extreme or atrocious conduct.

The plaintiff also sued for breach of contract. “To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach.”

The court dismissed the breach of contract claims against the individual defendants and granted the plaintiff’s motion to amend her complaint against the corporate defendant to clarify or restate her breach of contract claim.

So Now What?

Simple case, right? Well maybe. In the negligence complaint which survived the motion to dismiss, the plaintiff’s allegations stated:

The plaintiff alleges that both Intergro and Seproma “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”

Two issues surface here. The first is the allegation that white-water rafting requires you to have eye protection. However, the second has possibly greater results. The complaint of not providing enough safety gear is not against the raft company, but against the plaintiff’s employer who booked the trip. The allegation is the employer who booked the trip had a duty to provide proper gear for the trip.

This shifts the burden away from the people who understand the risks, rafting companies, to people who do not understand the risks, companies, churches, groups that book raft trips. Every raft company might be able to argue successfully, that the standards in the industry are to provide a PFD.

However, the company will have to rely on the industry standards of whitewater rafting (or any other sport or recreational activity) but then check to see if there is a higher standard of care owed to employees.

Here the plaintiff seemed to lose most of here employment law claims. The decision indicates she was denied worker’s compensation for her injuries. However, if the activity was argued to be part of her employment, then this may create a greater duty and a greater reluctance on the part of corporations to do team building events.

What do you think? Leave a comment.

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Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631

Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631

Carmen Elena Monteilh Chavarria, Plaintiff, v. Intergro, Inc., et al., Defendants.

CASE NO. 8:17-cv-2229-T-23AEP

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION

2018 U.S. Dist. LEXIS 117631

July 16, 2018, Decided

July 16, 2018, Filed

COUNSEL: [*1] For Carmen Elena Monteilh Chavarria, Plaintiff: Carlos A. Leyva, LEAD ATTORNEY, Digital Business Law Group, P.A., Palm Harbor, FL; Linda Susan McAleer, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Linda S. McAleer, San Diego, CA.

For Intergro, Inc., Timothy Dolan, Felix Renta, Defendants: Catherine M. DiPaolo, Richard M. Hanchett, LEAD ATTORNEYS, Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, Tampa, FL.

JUDGES: STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.

OPINION BY: STEVEN D. MERRYDAY

OPINION

ORDER

On September 25, 2017, the plaintiff sued (Doc. 1) the defendants for negligence, for intentional infliction of emotional distress, and for breach of contract. Asserting the same claims, the plaintiff amended (Doc. 15) her complaint on October 25, 2017. On November 8, 2017, the defendants moved (Doc. 19) to dismiss the amended complaint,1 and on April 28, 2018, the plaintiff moved (Doc. 39) — for the first time — for an order determining that Honduran law governs the claims in this action.2

1 “Defendants’ motion to dismiss amended complaint, alternative motion to strike certain allegations and the affidavit of attorney Carlos A. Leyva, and alternative notice of objection to testimony of Carlos A. Leyva.” (Doc. 19)

2 Also, the plaintiff moves “for partial summary judgment as to liability only, pursuant to [the] breach of contract claim.” (Doc. 43 at 1)

By failing to timely assert the claim, a party waives the application of foreign law. Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1257 (11th Cir. 2006); Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (holding that the plaintiff “explicitly submitted to Illinois [not Virginia] law and relied solely on it, and having done so, the district [*2] court was right to apply it to the dispute. . . . The principle of waiver is designed to prohibit this very type of gamesmanship — [the plaintiff] is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don’t go his way, ask for a mulligan under the laws of a different jurisdiction.”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995) (holding that choice of law is “normally waivable”); Anderson v. McAllister Towing and Transp. Co., 17 F. Supp. 2d 1280, 1286 n.6 (S.D. Ala. 1998) (Volmer, J.) (holding that the defendant waived the right to have Saudi Arabian law applied to a contractual dispute because the defendant failed to give reasonable notice of its intent to assert that foreign law applied). “The failure to give proper notice of the applicability of foreign law does not warrant dismissal . . . . It is more likely that a failure to give reasonable notice will result in a waiver of the applicability of foreign law to the case.” Moore’s Federal Practice, Vol. 9, § 44.1.03[3] (3d ed. 2016).

In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued [*3] and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.

BACKGROUND

Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. (Doc. 15 at 4) The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. (Doc. 15 at 4) The plaintiff alleges that both Intergro and Seproma3 “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.” (Doc. 15 at 5)

3 Seproma, a subsidiary of Intergro, is not a party to this action.

After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. (Doc. 15 at 6) Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two [*4] further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye. (Doc. 15 at 6)

DISCUSSION

Negligence

To state a claim for negligence, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). The plaintiff alleges that Integro owed her a duty “not to select” the rafting event in which she was injured and a duty to provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.” (Doc. 15 at 8) The defendants argue (1) that the plaintiff fails to allege sufficiently that the defendants knew that the rafting event posed an unreasonable risk of harm and (2) that, even if the plaintiff had alleged a duty of care owed by Intergro to the plaintiff, she fails to allege any individual duty owed by Dolan or Renta.

The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; [*5] that the breach caused her injury; and that she has suffered actual damages as a result of the defendants’ negligence. The plaintiff states a claim for negligence.

Intentional infliction of emotional distress

To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009) The standard for outrageous conduct is distinctly high. Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985) (“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). Whether a person’s alleged conduct is sufficiently outrageous or intolerable is a matter of law. De La Campa v. Grifols America, Inc., 819 So. 2d 940 (Fla. 3d DCA 2002).

The plaintiff alleges (1) that the “[d]efendants understood that their collective refusal to compensate Plaintiff for work related injurious activities, including lost wages and medical care, would cause emotional anxiety and distress to a single working mother of three children[]” (Doc. 15 at 7) and (2) that the defendants’ “intentional refusal to pay Plaintiff’s lost [*6] wages, medical expenses, and other benefits as required by Honduran law . . . caused Plaintiff emotional distress” (Doc. 15 at 9). The plaintiff fails to allege a single instance of “outrageous,” “extreme,” and “atrocious” conduct. Count II is dismissed for failing to state a claim.

Breach of contract

The plaintiff sues for breach of contract “pursuant to non-payment of employment termination benefits.” (Doc. 15 at 1) To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).

Intergro

The amended complaint fails to identify an unfulfilled contractual obligation. Instead, the plaintiff claims entitlement to payment of benefits under Honduran law but fails to identify the law or the benefits to which she is entitled. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is granted. In amending Count III to provide a more definite statement of the claim against Intergro for breach of contract, the plaintiff must clarify the allegation that “Intergro breached the Contract by failing to pay Plaintiff the benefits that were due under same pursuant to [*7] Honduran law.” (Doc. 15 at 10) Ambiguity exists as to whether Honduran law or the contract governs the obligation to pay, whether Honduran law or the contract governs the amount of the required payment, or to whether and to what extent Honduran law and the contract otherwise control the obligation to pay and the amount of the payment. The amended complaint must clarify the plaintiff’s claim in this respect, among others.

Dolan and Renta

The plaintiff fails to state a claim against either Dolan or Renta. In Count III, the plaintiff alleges that the plaintiff’s “employment with Intergro was controlled by a binding contract” and that Intergro breached the contract “by failing to pay Plaintiff the benefits that were due under same pursuant to Honduran law.” (Doc. 15 at 9-10) But in the prayer for relief, the plaintiff (who purportedly contracted only with Intergro) prays for judgment against all defendants “for the full amount of contractual benefits due under Honduran law.” (Doc. 15 at 10) The complaint lacks an allegation that Dolan and Renta are parties to the contract. Count III fails to state a claim against Dolan and Renta.

Motion to strike

The defendant moves (Doc. 19) under Rule 12(f), Federal Rules of Civil Procedure, to strike [*8] the allegations in paragraphs 7, 8, 14, 31, 32, 35, and 37 of the amended complaint and moves to strike the affidavit of Carlos A. Leyva (Doc. 15-1). Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “A motion to strike is a drastic remedy” and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962). “An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor relevant to the issues involved in the action. . . . ‘Scandalous’ generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Moore’s Federal Practice, Vol. 2, s 12.37[3] (3d ed. 2016). The defendant fails to identify and describe why the allegations are immaterial, irrelevant, and scandalous, and the plaintiff argues plausibly that the allegations are “related” to the controversy, are material, and are pertinent.

The defendant argues that Carlos Leyva’s affidavit contains allegations that have “no relation to [*9] this controversy and cause prejudice to Defendants because they are inadmissible hearsay.” (Doc. 19 at 12) The plaintiff responds that the “[d]efendants . . . conflate what is required for summary judgment with what is required in the pleadings. . . . The evidentiary burden that Defendants assume . . . does not exist at this stage in the proceedings.” (Doc. 21 at 16) For the reasons stated by the plaintiff, the defendants’ motion to strike Carlos Leyva’s affidavit is denied.

CONCLUSION

The defendant’s motion (Doc. 19) to dismiss is GRANTED IN PART. Count II is DISMISSED. Count III is DISMISSED against Dolan and Renta. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is GRANTED. The plaintiff must amend Count III to provide a more definite statement of the claim against Intergro for breach of contract.

The defendant’s “alternative motion [Doc. 19] to strike certain allegations and to strike the affidavit of attorney Carlos A. Leyva” is DENIED. The plaintiff’s motion (Doc. 39) for “choice of law” is DENIED. The plaintiff’s motion (Doc. 43) for partial summary judgment on Count III is DENIED.

No later than JULY 27, 2018, the plaintiff must amend the complaint [*10] to comply with this order4 The plaintiff must add no new claim.

4 That is, the plaintiff must (1) remove the claims for intentional infliction of emotional distress and (2) remove the claims against Dolan and Renta for breach of contract. Also, the plaintiff must amend Count III to provide a more definite statement of the claim against Integro for breach of contract.

ORDERED in Tampa, Florida, on July 16, 2018.

/s/ Steven D. Merryday

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE


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.

This judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

State: Florida: United States District Court for the Northern District of Florida, Panama City Division

Plaintiff: Brian Moore

Defendant: North America Sports, Inc., USA Triathlon

Plaintiff Claims:

Defendant Defenses: Assumption of the risk, Release

Holding: for the Plaintiff

Year: 2009

Summary

Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.

Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.

Facts

The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.

During the swim portion of the triathlon the deceased experienced distress and died three days later.

His survivors filed this lawsuit.

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

The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.

When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.

The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.

Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.

The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.

The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.

Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.

However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.

The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.

Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.

The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.

So Now What?

Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.

I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.

Check Boxes in a Release are landmines waiting to explode.

Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.

It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see 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.

You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.

That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.

Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.

Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.

What do you think? Leave a comment.

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

    

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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.

Defendant took plaintiffs on a guided personal watercraft tour with an employee/guide who had not been trained as required by Florida’s law.

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

State: Florida: United States District Court for the Southern District of Florida

Plaintiff: Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva

Defendant: Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff

Third Party Defendant(s): Jeffrey Wilkerson, Third-Party Defendant

Plaintiff Claims: Negligence Per Se

Defendant Defenses: : (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

Holding: For the Plaintiff

Year: 2007

Summary

If there is a statute that applies to your business or activity, you must know and abide by the statute. Failure to do so can void all of your defenses and in some cases the claim may not be covered by your insurance policy.

Here the defendant rented personal watercraft to the plaintiffs without instructing the guests as required by Florida Statute. By not abiding by the statute, the defendant’s defenses were void and the defendant’s liability was decided by the court.

Facts

The plaintiff’s, husband, wife and daughter paid for a guided personal watercraft (PWC or formerly known as jet ski) tour. During the tour, another tour participant panicked and drove his PWC at a high rated of speed into the plaintiff’s.

The plaintiff’s sued the defendant PWC tour company. The PWC tour company sued the participant who drove the PWC into the plaintiff’s as third-party plaintiffs versus third party defendants.

The defendants relied on four defenses:

(1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness;

(2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness;

(3) Florida statutory law does not apply; and

(4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

The plaintiff argued that because the defendant did not hire or require it’s guides to meet educational requirements required by state law, the defendant was negligent per se.

Negligence per se is negligence that violates a law or regulation which was created for the purpose of protecting a group of people that were injured by the plaintiff.

The Florida statutes in question were:

Florida Statute § 327.39

§ 327.39. Personal watercraft regulated.

(b) 1. It is unlawful for the owner of any leased, hired, or rented personal watercraft, or any person having charge over or control of a leased, hired, or rented personal watercraft, to authorize or knowingly permit the watercraft to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.

The second statute was Florida Statute § 327.54

§ 327.54. Liveries; safety regulations; penalty.

(1) A livery may not knowingly lease, hire, or rent a vessel to any person:

(e) When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:

1. Operational characteristics of the vessel to be rented.

2. Safe vessel operation and vessel right-of-way.

3. The responsibility of the vessel operator for the safe and proper operation of the vessel.

4. Local characteristics of the waterway where the vessel will be operated.

Any person delivering the information specified in this paragraph must have successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.

The first statute required the person renting a PWC to instruct the renter on the use of the PWC. The second statute identified the instructions to be given and required the person giving the instructions to have successfully completed a boater safety course. The defendant’s employee in this case had not given the necessary instructions and had not completed a boater safety course.

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

Federal judiciary has a rule they apply to these situations called the Pennsylvania Rule. The Pennsylvania Rule states:

…when a ship at the time of an collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.

Basically, the Pennsylvania rule shifts the burden of proof from the plaintiff, who normally has the burden to proof the defendant was at fault, to the defendant, requiring the defendant to prove, it was not at fault.

The next hurdle is the state law’s relationship to admiralty law. Admiralty law is a Federal law, in fact, a series of international laws, to control transportation of goods and people across borders and international travel. States can only make laws concerning admiralty issues if there is not federal law on the subject already. If the federal law conflicts with the state law, the federal law applies.

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident.

There is no federal law concerning the rental of PWCs. So, the two Florida statutes were available to the plaintiff. Additionally, the Florida statutes were created to protect a specific group of people, and the plaintiffs were part of the group to be protected.

These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

Side note: the defendant co-owner admitted he was not familiar with Florida’s statutes that were at issue. The court’s response was the classic you learn in law school, and you should learn in kindergarten. “…ignorance of the law is not a defense.”

The defendant argued that instruction would have changed the accident or prevented the accident. The court did not buy that argument.

However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

For the defendant not to be liable, the must be completely free of fault, and the violation of the Florida statute created fault on the part of the defendant; consequently, the defendant was not free of fault.

The defendant then argued the limitation of liability under admiralty law applied. The limitation of liability states the defendant is liable to the value of the vessel after the accident. Here the defendant argued the extent of their liability was $3,000 because that was what the PWC was worth.

For the defendant to use this defense, required a two-step test:

(1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.

Since the defendants could have easily investigated whether their employee had taken a boater safety course, and they did not, they could not take advantage of the limitation of liability because the defendant should have had knowledge of the unseaworthiness of the PWC.

The next defense argued was the release signed by the plaintiff. Here the release was void because it violated public policy. The statute created a safety requirement on the part of the defendant. The statute was enacted to keep the public safe. Therefore, failing to keep the public safe was a public policy issue.

[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.”

In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

The defendant’s motion for summary judgement was denied. The plaintiff had filed a motion for summary judgment as to the liability of the defendant. That motion was granted. The sole remaining issue then was the amount of the liability, how much the defendant owed the plaintiff.

So Now What?

Releases are the best defense to lawsuits in most states. However, the most effective legal argument to void a release is to claim the defendant was Negligence Per Se. Here the court found that because the statutes were created for public policy reasons, the release violated public policy and thus was void.

Most state courts just void the release stating the release cannot prevent claims based on violation of a statute.

More importantly, any time a statute is created that applies to your business or activity, you must understand and follow the statute. Both statutes argued above had criminal penalties for violation of the statutes. Not only was the defendant liable in a lawsuit for violating the statutes, the defendants could be fined by the state.

Don’t get into business without knowing the law.

More articles on Negligence Per Se

Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

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Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Brian Moore, as Personal Representative on behalf of the Estate of Bernard P. Rice, deceased, Plaintiff, vs. North America Sports, Inc., et al., Defendants.

CASE NO. 5:08cv343/RS/MD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION

2009 U.S. Dist. LEXIS 134557

June 26, 2009, Decided

June 26, 2009, Filed

CORE TERMS: summary judgment, decedent, affirmative defenses, online, registration, fault, box, tortfeasor, choice of law, necessary to complete, sanctioning, registered, printout, Black’s Law Dictionary, last act, material fact, nonmoving party, sole cause, concurrent tortfeasors, health care providers, undisputed, off-campus, designated, causation, lawsuit, movant’s, waived, willful, usage, medical attention

COUNSEL: [*1] For BRIAN MOORE, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASED, Plaintiff: DIANA SANTA MARIA, LEAD ATTORNEY, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASE, FORT LAUDERDALE, FL; DOROTHY CLAY SIMS, LEAD ATTORNEY, LAW OFFICE OF DOROTHY CLAY SIMS ESQ, OCALA, FL; JOEL S PERWIN, LEAD ATTORNEY, JOEL S PERWIN PA – MIAMI FL, MIAMI, FL; JOHN N BOGGS, BOGGS & FISHEL – PANAMA CITY FL, PANAMA CITY, FL.

For NORTH AMERICA SPORTS INC, doing business as WORLD TRIATHLON CORPORATION, doing business as IRONMAN TRIATHLON, doing business as FORD IRONMAN FLORIDA, formerly known as IRONMAN NORTH AMERICA, USA TRIATHLON, A FOREIGN COMPANY, Defendants: JASON BERNARD ONACKI, LEAD ATTORNEY, COLE SCOTT & KISSANE PA – PENSACOLA FL, PENSACOLA, FL; LARRY ARTHUR MATTHEWS, LEAD ATTORNEY, MATTHEWS & HIGGINS LLC, PENSACOLA, FL; SHANE MICHAEL DEAN, DEAN & CAMPER PA – PENSACOLA FL, PENSACOLA, FL.

JUDGES: RICHARD SMOAK, UNITED STATES DISTRICT JUDGE.

OPINION BY: RICHARD SMOAK

OPINION

Order

Before me are Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46); Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79); Plaintiff’s Motion for [*2] Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86); Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125); and Plaintiff’s Motion for Leave to File Reply (Doc. 144).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant’s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice; there must be enough of a showing that the [*3] jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).

II. FACTS

Decedent, Bernard Rice, registered online in Montana, and participated in the 2006 Ford Ironman Florida Triathlon held in Panama City Beach, Florida on November 4, 2006. Defendant contends that Rice signed numerous waivers to participate in the race; Plaintiff denies that Rice signed any waivers. Decedent experienced distress in the swim course approximately half-way into the second 1.2 mile lap of the 2.4 mile swim course. He received medical attention, but the timing and nature of medical attention are in dispute. Rice died on November 7, 2006.

III. DUTY OWED TO PLAINTIFF

a. Assumption of Risk

Defendants contend that Rice voluntarily assumed the risk of participating in the 2006 Ford Ironman Florida Triathlon. “When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983). However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible. Id; O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Dist. Ct. App. 1982). Therefore, summary judgment is not appropriate on this issue.

b. Sanctioning Body

Defendant [*4] USA Triathlon argues that it had no duty as the sanctioning organization of the 2006 Ford Ironman Florida Triathlon. Defendants cite authority from Illinois, Massachusetts, and New York. In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event. See Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 200) (university had duty to graduate student placed in specific off-campus internship which it knew to be unreasonably dangerous); D’Attilio v. Fifth Avenue Business Ass’n, Inc., 710 So.2d 117 (Fla. Dist. Ct. App. 1998) (the party with control over land owes a duty, jury question whether defendant that coordinated and sponsored a fair on city streets, where city controlled amount of law enforcement, had a duty); Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (Principal and teacher had a duty to injured student because had the authority to control activities of school club even at a meeting held off-campus); Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999) (camp sponsor could be found negligent for falling to tell lifeguard camper suffered from seizures). It is a question of fact for the jury whether Defendant USA Triathlon had sufficient control over the 2006 Ford Ironman Florida Triathlon because of its sanction of the event to have a duty to the participants. Summary judgment is not appropriate.

IV. WAIVERS

Defendant moves for summary judgment based on [*5] the waivers decedent allegedly executed. Plaintiff moves for summary judgment on Defendants’ third and fourth affirmative defenses which read as follows.

THIRD AFFIRMATIVE DEFENSE

53. On November 6, 2005, and prior to Plaintiff’s claim in this action accruing, Decedent waived any and all claims against USAT and NA Sports. A copy of the waiver is attached as Exhibit “A.” Decedent also entered two additional waivers during race registration. Unsigned copies of the waivers entered by Decedent are attached as Exhibits “B” (although designated as a 2007 waiver, it is otherwise the same as the 2006 waiver executed by Decedent) and “C.” By entering these waivers, Decedent waived the Plaintiff’s ability to bring the claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

FOURTH AFFIRMATIVE DEFENSE

54. On November 6, 2005, and prior to accrual of Plaintiff’s claims in this action, Decedent entered a release of any and all claims against USAT and NA Sports relating to the 2006 Ford Ironman Triathlon. A copy of the release is attached as Exhibit “A.” Decedent also entered two additional releases during race registration. Unsigned copies of the releases entered by Decedent are attached as Exhibits “B” (although [*6] designated as a 2007 release, it is otherwise the same as the 2006 release executed by Decedent) and “C.” By entering these releases, Decedent has precluded Plaintiff’s claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

a. Choice of Law

First, the choice of law governing the waiver must be determined, because the applicable law might not support enforcement of the waiver, which would make the waivers irrelevant. As for the appropriate contract law to apply, the parties agree that Florida choice of law analysis is applicable.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941).
Both parties also agree that under Florida law, “lex loci contractus” provides that the laws of the jurisdiction where the contract was executed govern interpretation of the substantive issues regarding the contract. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). The determination of where a contract was executed is fact-intensive and requires a determination of “where the last act necessary to complete the contract [was] done.Id. at 1092-93 (quoting Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301, 1305 (S.D. Fla. 2002)). The last act necessary to complete a contract is the offeree’s communication of acceptance to the offeror. Id. (citing Buell v. State, 704 So.2d 552, 555 (Fla. Dist. Ct. App. 1997)). Here, it is undisputed that the last act necessary to complete the contract occurred in Montana.

Plaintiff points to Montana law, which states, “All contracts [*7] which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law. See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1295 (5th Cir. 1972); See Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990).

Defendants point to Montana law, which states, “A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” Mont. Code Ann. § 28-3-102 (2007). The race occurred in Florida; therefore, Florida law applies. In Florida, waivers or exculpatory clauses, although not looked upon with favor, are valid and enforceable if the intent to relieve a party of its own negligence is clear and unequivocal. Banfield v. Louis, 589 So.2d 441, 444-45 (Fla. Dist. Ct. App. 1991) (citing L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. Dist. Ct. App. 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. Dist. Ct. App. 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. Dist. Ct. App. 1972)).

b. Online Waivers

On November 6, 2005, Rice registered online for the 2006 Ford Ironman Florida Triathlon, which includes two waivers. In order to properly execute both waivers, the participant had [*8] to check two separate boxes. While both sides agree that Rice registered himself online, it is in dispute whether the boxes were checked. The first waiver only applies to the active.com website, which advertises various races and allows participants to fill out online registrations. However, the website has nothing to do with the actual race and is not a party to this suit. The second online waiver applies to Defendants. Defendants contend that the online registration could not be completed unless the boxes were checked, but Plaintiff contends that the printout from the online registration provided by Defendants does not contain any checked boxes (or any boxes). Whether the online wavier was properly executed is clearly in dispute.

Defendants provide a printout showing an electronic signature. However, in order to properly execute the waiver, the waivers state that the participant must check the box. Defendants fail to provide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been [*9] warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

c. Onsite Registration

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

V. BAY MEDICAL

Plaintiff moves for dismissal, or summary judgment, on Defendants’ sixth affirmative defense, which alleges that Bay Medical Emergency Medical Services was “the sole cause or contributing cause of the injuries and harm alleged by Plaintiff.” Plaintiff repeats the exact same argument in its Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125). Plaintiff argues that this is not an affirmative defense, but rather is a traditional basis for denying causation, on the ground that another entity was solely at fault. An affirmative [*10] defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Black’s Law Dictionary (8th ed. 2004). Defendants contend that Florida Statute § 768.81(3) permits a defendant to apportion fault to a non-party whose negligence contributed to the plaintiff’s injury or death.

The Florida Supreme Court held that “apportion[ing] the loss between initial and subsequent rather than joint or concurrent tortfeasors…cannot be done.” Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla. 1977). Concurrent tortfeasors are two or more tortfeasors whose simultaneous actions cause injury to a third party. Black’s Law Dictionary (8th ed. 2004). Here, Defendants and Bay Medical Emergency Medical Services are not concurrent tortfeasors, because their actions could not have occurred simultaneously. Florida law clearly states:

“[O]riginal tortfeasor is liable to victim not only for original injuries received as result of initial tort, but also for additional or aggravated injuries resulting from subsequent negligence of health care providers, even though original tortfeasor and subsequently negligent health care providers are independent tortfeasors. Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999).

Therefore, Defendants’ sixth affirmative defense is dismissed. [*11] Defendants are not entitled to include Bay Medical Emergency Medical Services on the verdict form for the jury’s consideration, but Defendants are permitted to argue that Bay Medical Emergency Medical Services were the sole cause of the injuries and harm alleged by Plaintiff as it relates to causation.

VI. CONCLUSION

IT IS ORDERED:

1. Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46) is denied.

2. Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79) is denied.

3. Plaintiff’s Motion for Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86) is granted.

4. Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125) is denied as moot.

5. Plaintiff’s Motion for Leave to File Reply (Doc. 144) is denied as moot.

ORDERED on June 26, 2009.

/s/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE


Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva, a minor, Plaintiffs, vs. Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff, vs. Jeffrey Wilkerson, Third-Party Defendant.

Case No. 06-10116-CIV-MOORE/GARBER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2007 U.S. Dist. LEXIS 46490

June 27, 2007, Decided

June 27, 2007, Entered

SUBSEQUENT HISTORY: Judgment entered by, Motion denied by Tassinari v. Key W. Water Tours, L.C., 2007 U.S. Dist. LEXIS 80872 (S.D. Fla., Oct. 31, 2007)

PRIOR HISTORY: Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 43858 (S.D. Fla., June 18, 2007)

CORE TERMS: watercraft, maritime law’s, collision, boater, fault, summary judgment, boating, unseaworthiness, admiralty, maritime, handling, genuine, rental, vessel, safe, statutory rule, tour guide, public policy, per se, exoneration, privity, renters, ship, panicked, State Boating Law Administrators Betz Depo, liability arising, negligence per se, negligence cases, statutes enacted, standard of care

COUNSEL: [*1] For Ronald Tassinari, an individual, Sheila Silva, an individual and next best friend of Ashley Silva, Ashley Silva, a minor, Plaintiffs: Domingo Carlos Rodriguez, LEAD ATTORNEY, Rodriguez Aronson & Essington, Miami, FL; Patricia Leigh McMillan Minoux, LEAD ATTORNEY, Rodriguez, Aronson & Essington, P.A., Coral Gables, FL.

For Key West Water Tours, L.C., a Florida Corporation, Defendant: Bruce Michael Trybus, Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.

For Key West Water Tours, L.C., a Florida Corporation, ThirdParty Plaintiff: Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.

JUDGES: K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE.

OPINION BY: K. MICHAEL MOORE

OPINION

ORDER GRANTING SUMMARY JUDGMENT AS TO DEFENDANT’S LIABILITY

THIS CAUSE came before the Court upon Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) and Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46).

UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. Background

Plaintiffs are residents [*2] of Massachusetts. Defendant Key West Water Tours, L.C. (“Defendant” or “Water Tours”) is a Florida corporation doing business in Monroe County, Florida, as a personal watercraft (jet skis and/or waverunners) rental agency and provider of guided personal watercraft tours to the public. On or about July 9, 2004, Defendant rented personal watercraft to Plaintiffs at or near Key West, Monroe County, Florida. Defendant then took a group of personal watercraft renters, including Plaintiffs and Third-Party Defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters.

During the tour, the watercraft operated by Third-Party Defendant Jeffrey Wilkerson collided with the watercraft operated by Plaintiffs Ronald Tassinari and Ashley Silva, injuring Plaintiffs Ronald Tassinari and Ashley Silva.

Defendant argues that it is entitled to summary judgment on the following issues: (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence [*3] or unseaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement. Plaintiffs argue that they are entitled to summary judgment because Defendant violated certain Florida State statutes making Defendant negligent per se. Plaintiffs further argue that if Defendant is negligent per se, then Defendant is not entitled to have its liability limited to the value of the watercraft.

II. Standard of Review

The applicable standard for reviewing a summary judgment motion is unambiguously stated in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir. 1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). [*4] An issue of fact is “material” if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). It is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.

In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party:

may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed. R. Civ. P. 56(e). “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

III. Discussion

A. The Pennsylvania Rule and Florida Statutory Law

Plaintiffs argue that Defendant is negligent per se because Defendant violated [*5] Florida State statutes enacted to protect the safety of personal watercraft renters. Pl. Mot. at 9-14. Federal maritime law’s unique version of negligence per se is embodied in what is called the “Pennsylvania Rule.” In re Superior Constr. Co., 445 F.3d 1334, 1340 (11th Cir. 2006). “Under the Pennsylvania Rule, when a ship at the time of an allision is in actual violation of a statutory rule intended to prevent allisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” Id. (citing The Pennsylvania, 86 U.S. 125, 136, 22 L. Ed. 148 (1873)).

Defendant argues that State law does not apply in a case brought under federal maritime law; therefore, the Pennsylvania rule does not apply to violations of Florida statutes. Def. Resp. at 6-8. However, the Seventh Circuit recognized that “[s]everal courts have applied the Pennsylvania rule to the violation of state statutes or local ordinances.” Complaint of Wasson, 495 F.2d 571, 583 (7th Cir. 1974) [*6] (citations omitted); see also Protectus Alpha Nav. Co., Ltd. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1382-83 (9th Cir. 1985) (violation of Washington State statute would support negligence per se).

Further, State law has been applied in admiralty cases where there is no direct conflict with established federal maritime law. Wilburn Boat Co. v. Fireman’s Fund Insur. Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1955); 1 T. Schoenbaum, Admiralty and Maritime Law § 4-2 (4th ed.); see also Smith v. Haggerty, 169 F. Supp. 2d 376 (E.D. Pa. 2001) (applying State law regulations to negligence claims arising from a boating accident) (vacated on other grounds). The Supreme Court has recognized that “[i]n the field of maritime contracts, as in that of maritime torts, the National Government has left much regulatory power in the States.” Wilburn Boat, 348 U.S. at 313 (the Supreme Court ultimately declined to adopt a federal admiralty rule governing insurance policy provisions and decided to leave that area up to State regulation).

In the present case, Plaintiffs cite to several Florida statutes that were enacted, in part, in response to an act of Congress intended to “encourage greater State participation and [*7] uniformity in boating safety efforts, and particularly to permit the States to assume the greater share of boating safety education, assistance, and enforcement activities.” 46 U.S.C. § 13102 (2007). The Court is not persuaded that statutes enacted in response to Congress’s stated purpose of permitting the states to assume more responsibility in regulation of recreational boat safety are inapplicable merely because they were enacted by a state government.

Further, Defendant has not pointed to any established federal maritime law directly conflicting with and preempting these State statutes. In cases where a State statute conflicts with established federal maritime law or would materially frustrate a tenant of admiralty law, the State statutes should generally not be applied. Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986); Branch v. Schumann, 445 F.2d 175 (5th Cir. 1971); Miami Valley Broadcasting Corp. v. Lang, 429 So. 2d 1333 (Fla. 4th DCA 1983). Defendant overstates the holdings in Branch and Lang, arguing that State law can never be used in maritime negligence cases. Branch and Lang merely stand for the principle that State law cannot change established [*8] substantive maritime law. In Branch and Lang, the State law would have imposed a stricter burden than that established by federal maritime law; because it conflicted with federal maritime law and would have effectively changed the accepted maritime standard of care, the State law could not be applied. The Florida statutes at issue were not designed to circumvent federal maritime law or substitute a stricter standard of care in negligence cases; rather, they were designed to help regulate recreational boating safety. The Pennsylvania rule is an established principle of federal maritime law, which may be applied to violations of Florida State statutes; this application does not, in and of itself, conflict with federal maritime law.

Florida Statute § 327.39 makes it unlawful for the owner of a personal watercraft to “authorize or knowingly permit the [watercraft] to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.” Florida Statute § 327.54 requires that the instruction in the safe handling of personal watercraft with a motor of 10 horsepower or greater be delivered by a person [*9] who has “successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.” These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

In this case, Defendant owned or had control over the personal watercraft involved in the collision. At the time of the collision, Defendant employed Chris Betz (“Betz”) as a personal watercraft tour guide and allowed Betz to provide the safety instruction to persons operating the personal watercraft on the tour, including Jeffrey Wilkerson. Def. Mot. at 4-6. Betz admitted in his deposition that he had never completed a boater’s safety course approved by the National Association of State Boating Law Administrators. Betz Depo. at 12. Co-owner Gerald Grogan admitted that Key West Water Tours does not require its tour guides to have passed a safe boating course. Grogan Depo. at 19. Therefore, Defendant violated Florida [*10] statutes designed to protect boater safety and prevent collisions, by entrusting personal watercraft to persons who were not instructed in the safe handling of the personal watercraft as the law requires. Co-owner Jeremy Ray indicated that he was not very familiar with the Florida statutes at issue. Ray Depo. at 9, 20-21. However, ignorance of the law is not a defense.

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident. Defendant argues that “[t]he sole cause of the subject accident was the negligent operation of a personal watercraft by Third-Party Defendant Jeffrey Wilkerson.” Def. Mot. at 11. Defendant asserts that “[t]here is not a single additional instruction that would have prevented the subject accident.” Id. Betz gave safety instructions. Betz Depo. at 32-33. According to Betz, Jeffrey Wilkerson “was coming in way too fast . . . just like an old lady in a car, panicked, eyes wide open, completely wide open, staring straight at the group and a panic in his face [*11] because he’s going too fast, and never let off the throttle until he hit.” Def. Mot. at 7. Defendant further asserts that Defendant had never had an accident previously and that Jeffrey Wilkerson had operated the watercraft without problem for about two hours before the accident. It is undisputed that Jeffrey Wilkerson panicked and that the watercraft was at full throttle until impact. However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

C. Exoneration From Liability

“An owner will be exonerated from liability when he, his vessel, and crew are found to be completely free of fault.” In re Complaint of Caribbean Sea Transport, 748 F.2d 622, 626 (11th Cir. 1984) (citing Tittle v. Aldacosta, 544 F.2d 752, 755 (5th Cir. 1977)). As discussed above, Defendant cannot be said to be completely free of fault; therefore, Defendant is not entitled to exoneration.

D. Limitation of Liability Under Limitation [*12] Act

The Eleventh Circuit has held that the determination of whether the owner of a vessel is entitled to limitation of liability requires a two-step analysis: (1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.” Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990) (citing Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976)). “Privity and knowledge are deemed to exist where the owner had the means of knowledge or, as otherwise stated, where knowledge would have been obtained from reasonable inspection.” China Union Lines, Ltd. v. A.O. Andersen & Co., 364 F.2d 769, 792-93 (5th Cir. 1966). Under the Pennsylvania rule, as discussed above, Defendant’s violation of Florida statutes regarding proper instruction in safely operating the personal watercraft is presumed to have caused the collision. The owners of Key West Water Tours, L.C. knew, should have known, and could have discovered upon minimal investigation whether its tour guides, who they hired, had completed [*13] approved boater safety courses and whether the requirements of Florida law regarding proper safety and instruction were being met. Therefore, Defendant is not entitled to limitation of liability to the value of the watercraft.

E. Waiver and Hold Harmless Provisions of the Rental Agreement

“[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.” Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 631 (S.D.W. Va 2004) (citations omitted); Restatement (Second) of Contracts § 195 comment a (1981) (“If, for example, a statute imposes a standard of conduct, a court may decide on the basis of an analysis of the statute, that a term exempting a party from liability for failure to conform to that standard is unenforceable.”). In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on [*14] owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

IV. Conclusion

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) is DENIED. It is further

ORDERED AND ADJUDGED that Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46) is GRANTED. The pretrial conference to discuss remaining issues will be held as scheduled, on June 28, 2007.

DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of June, 2007.

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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State AED laws may create liability; make sure you understand what your state laws say. Florida, an AED law affecting high schools created liability for the HS.

A Florida statute requiring schools to acquire and train all employees on the use of AED’s, created liability when the AED was not used.

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

State: Florida, Supreme Court of Florida

Plaintiff: Abel Limones, Sr., et al

Defendant: School District of Lee County et al.

Plaintiff Claims: Common Law negligence and breach of a duty required by statute, Florida Statute 1006.165

Defendant Defenses: No duty and Immune under 1006.165 and 768.1325

Holding: for the Plaintiff

Year: 2015

The deceased was a 15-year-old boy who played on a high school soccer team. While playing a high school soccer game he collapsed. His coach ran onto the field and started CPR and was assisted by two nurses who were sitting in the stands.

Allegedly, the coach asked several times for an AED (Automatic External Defibrillator). An AED was located in a storage are at the end of the field. However, no one ever retrieved the AED.

Ten minutes later, the fire department arrived and attempted to revive the student with their AED. That did not work. Twenty-six minutes later, an ambulance arrived and with the application of the ambulance AED and the application of drugs, EMS was able to restore the student’s heart rate.

The plaintiff’s expert witness testified that the 26 minutes without the use of the AED, not having a heartbeat, deprived the student of oxygen, which caused brain damage. The student was left in a persistent vegetative state.

The trial court granted the defendants motion for summary judgment. The plaintiff appealed and the Florida Appellate Court upheld the dismal by the trial court. The Florida Supreme Court then heard the appeal and issued this decision.

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

The Supreme Court of Florida first looked at basic negligence claims pursuant to Florida’s law. Florida’s law applies the same four steps to prove negligence as most other states.

We have long held that to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.

A legal question is one that must be answered by the courts. So whether or not a duty existed, in proving negligence, is first reviewed by the trial judge. Factual questions are reviewed by the finder of fact, most commonly called the jury. Looking at the issue of duty, the court found under Florida Law, there were four sources of duty.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

Rarely do courts define how duties are created. Consequently, reviewing how a duty is created is interesting. The last way, general facts of the case, are how most duties are determined. The plaintiff argues there is a duty because of how others act or fail to act or based on the testimony from expert witnesses. Alternatively, an organization or trade association has published a list of the standards of care, which are then used to prove the duty failed.

The court then must examine if the minimum requirements for a duty have been met.

As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited. The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors.

In this case, the parties were relying on a statute; the Florida Statute that put AED’s in schools and required all school employees to be trained on their use, 768.1325. Once the court determines that a duty existed, then the jury must decide all other issues of the case.

Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law. We have clearly stated that the remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder.

The court then looked into the duty of schools with regard to students. A special relationship exists between a student (and their parents) and schools. A special relationship then takes the duty out from limited if any duty at all to a specific duty of care. Here that relationship creates a duty upon the school to act as a reasonable man would.

As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that a school functions at least partially in the place of parents during the school day and school-sponsored activities.

The duty thus created or established requires a school to reasonably supervise students.

This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students.

It should be noted, however, when referring to “school” in this manner; the courts are talking about public schools and students under the age of 18. Colleges have very different duties, especially outside of the classroom or off campus.

That supervision duty schools have, has five sub-elements or additional duties when dealing with student athletes.

Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury.

Here, several of the specific duties obviously could be applied to the case. Consequently, the court found the school owed a duty to the deceased.

Having determined the duty owed by the school to the deceased the court held that the school had a duty to the deceased that was breached. The use of an AED, required at the school by statute, was a reasonable duty owed to the deceased.

Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now.

The plaintiffs also argued there were additional duties owed based on the Florida School AED statute. However, the court declined to review this issue. Meaning, it is undecided and could go either way in the future.

The defendant then argued they were immune from suit based on the Florida AED Good Samaritan Act. The court then looked at the immunity statute set forth in the Florida School AED Statute. The Statute required schools to have AED’s and have to train all employees in the use of the AED. The court found that employees and volunteers could be covered under the Florida AED Good Samaritan Act. If they used the AED’s they would be immune from suit.

The court in reading the Florida AED Good Samaritan Act found two different groups of people were created by the act. However, only one was protected by the act and immune from suit. Those who use or attempt to use an AED are immune. Those that only acquire the AED, are not immune because they did not attempt to use the AED.

Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used.

That immunity only applied to the use of the AED. Here there was no use of the AED, so the statute did not provide any immunity.

It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under section 768.1325 and such section has absolutely no application here.

The court summarized its analysis.

We hold that Respondent owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes.

So Now What?

So in Florida, a statute that requires someone, such as a school to have AED’s then requires the school to use the AED’s and if they do not, they breach the common law duty of care to their students.

AED laws are going to become a carnival ride in attempting to understand and use them without creating liability or remaining immune from suit. You probably not only want to be on top of the law that is being passed in your state; you should probably go down and testify so the legislature in an attempt to save a life does not sink your business.

It is sad when a young man dies, especially, if he could have been saved. That issue is probably going to trial.

What do you think? Leave a comment.

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

#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, AED, Automatic External Defibrillator, Soccer, High School Team, Supervision, Use,

 


Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

Abel Limones, Sr., et al., Petitioners, vs. School District of Lee County et al., Respondents.

No. SC13-932

SUPREME COURT OF FLORIDA

161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

April 2, 2015, Decided

PRIOR HISTORY: [**1] Application for Review of the Decision of the District Court of Appeal – Direct Conflict of Decisions. Second District – Case No. 2D11-5191. (Lee County).

Limones v. Sch. Dist. of Lee County, 111 So. 3d 901, 2013 Fla. App. LEXIS 1821 (Fla. Dist. Ct. App. 2d Dist., 2013)

COUNSEL: David Charles Rash of David C. Rash, P.A., Weston, Florida, and Elizabeth Koebel Russo of Russo Appellate Firm, P.A., Miami, Florida, for Petitioners.

Traci McKee of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, Florida, and Scott Andrew Beatty of Henderson, Franklin, Starnes & Holt, P.A., Bonita Springs, Florida, for Respondents.

Jennifer Suzanne Blohm and Ronald Gustav Meyer of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, Florida, for Amicus Curiae Florida School Boards Association, Inc.

Leonard E. Ireland, Jr., Gainesville, Florida, for Amicus Curiae Florida High School Athletic Association, Inc.

Mark Miller and Christina Marie Martin, Pacific Legal Foundation, Palm Beach Gardens, Florida, for Amicus Curiae Pacific Legal Foundation.

JUDGES: LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

OPINION BY: LEWIS

OPINION

[*387] LEWIS, J.

Petitioners Abel Limones, Sr., and Sanjuana Castillo seek review of the decision of the Second District Court of Appeal in Limones v. School District of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), asserting that it expressly [**2] and directly conflicts with the decision of this Court in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), and several other Florida decisions.

BACKGROUND

At approximately 7:40 p.m. on November 13, 2008, fifteen-year-old Abel Limones, Jr., suddenly collapsed during a high school soccer game. There is no evidence in the record to suggest that Abel collapsed due to a collision with another player. The event involved a soccer game between East Lee County High School, Abel’s school, and Riverdale High School, the host school. Both schools belong to the School District of Lee County. When Abel was unable to rise, Thomas Busatta, the coach for East Lee County High School, immediately ran onto the field to check his player. Abel tried to speak to Busatta, but within three minutes of the collapse, he appeared to stop breathing and lost consciousness. Busatta was unable to detect a pulse. An administrator from Riverdale High School who called 911, and two parents in the stands who were nurses, joined Busatta on the field. Busatta and one nurse began to perform cardiopulmonary resuscitation (CPR) on Abel. Busatta, who was certified in the use of an automated external defibrillator (AED), testified that he yelled for an AED. The AED in the [**3] possession of Riverdale High School was actually at the game facility located at the end of the soccer field, but it was never brought on the field to Busatta to assist in reviving Abel.

Emergency responders from the fire department arrived at approximately 7:50 p.m. and applied their semi-automatic AED to revive Abel, but that was unsuccessful. Next, responders from the Emergency Medical Service (EMS) arrived and utilized a fully automatic AED on Abel and also administered several drugs in an attempt to restore his heartbeat. After application of shocks and drugs, emergency responders revived Abel, but not until approximately 8:06 p.m., which was twenty-six minutes after his initial collapse. Although Abel survived, he suffered a severe brain injury due to a lack of oxygen over the time delay involved. As a result, he now remains in a nearly persistent vegetative state that will require full-time care for the remainder of his life.

Petitioners, Abel’s parents, retained an expert, Dr. David Systrom, M.D., who determined that Abel suffered from a previously undetected underlying heart condition. Dr. Systrom further opined that if shocks from an AED had been administered earlier, oxygen [**4] would have been restored [*388] to Abel’s brain sooner and he would not have suffered the brain injury that left him in the current permanent vegetative state. Petitioners then filed an action against Respondent, the School Board of Lee County.1 They alleged that Respondent breached both a common law duty and a statutory duty as imposed by section 1006.165, Florida Statutes (2008),2 when it failed to apply an AED on Abel after his collapse. The School Board moved for summary judgment, which the trial court granted and entered final judgment.

1 Petitioners initially filed an action against the School District of Lee County and the School Board of Lee County. All parties conceded that the only proper respondent in this case is the School Board of Lee County.

2 [HN1] Section 1006.165, Florida Statutes, requires all public schools that participate in the Florida High School Athletic Association to acquire an AED, train personnel in its use, and register its location with the local EMS.

On appeal, the Second District recognized that Respondent owed a duty to supervise its students, which in the context of student athletes included a duty to prevent aggravation of an injury. Limones, 111 So. 3d at 904-05 (citing Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982); Leahy v. Sch. Bd. of Hernando Cnty., 450 So. 2d 883, 885 (Fla. 5th DCA 1984)). However, the Second District proceeded to expand its consideration of the duty owed and enlarged [**5] its consideration into a factual scope, extent, and performance of that duty analysis. Id. at 905 (citing Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 262 Neb. 66, 628 N.W.2d 697, 703 (Neb. 2001)). In this analysis, the Second District considered and evaluated whether post-injury efforts in connection with satisfying the duty to Abel should have included making available, diagnosing the need for, or using an AED. Id. The Second District relied on the discussion provided by the Fourth District Court of Appeal in L.A. Fitness International, LLC v. Mayer, 980 So. 2d 550 (Fla. 4th DCA 2008), even though that case did not consider the same “duty” and the health club did not have a duty involving students or any similar relationship.

In L.A. Fitness, the Fourth District considered whether a health club breached its duty of reasonable care owed to a customer who was using training equipment when the health club failed to acquire or use an AED on a customer in cardiac distress. Id. at 556-57. After a review of the common law duties owed by a business owner to its invitees, the Fourth District determined that a health club owed no duty to provide or use an AED on a patron in cardiac distress. Id. at 562. The Second District in Limones found no distinction between L.A. Fitness and the present case, even though the differences are extreme, and concluded that reasonably prudent post-injury [**6] efforts did not require Respondent to provide, diagnose the need for, or use an AED. Limones, 111 So. 3d at 906. The Second District also determined that neither the undertaker’s doctrine3 nor section 1006.165, Florida Statutes, imposed a duty to use an AED on Abel. Id. at 906-07. Finally, after it concluded that Respondent was immune from civil liability under section 768.1325(3), Florida Statutes (2008), the Second District affirmed the decision [*389] of the trial court. Id. at 908-09. This review follows.

3 [HN2] The undertaker’s doctrine imposes a duty of reasonable care upon a party that freely or by contract undertakes to perform a service for another party. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003) (citing Restatement (Second) of Torts § 323 (1965)). The undertaker is subject to liability if: (a) he or she fails to exercise reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result. See id.

ANALYSIS

Jurisdiction

We first consider whether jurisdiction exists to review this matter. Petitioners assert that the decision below expressly and directly conflicts with the decision of this Court in McCain and other Florida decisions. See art. V, § 3(b)(3), Fla. Const. Specifically, Petitioners claim that the Second District defined the duty in a manner that conflicts with the approach delineated in McCain. We agree.

We have long [**7] held that [HN3] to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. See, e.g., U.S. v. Stevens, 994 So. 2d 1062, 1065-66 (Fla. 2008). Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant. McCain, 593 So. 2d at 503. Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case. Id. at 503 n.2. As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited.4 The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors. Id. at 502. Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law.5 We have clearly stated that the [**8] remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder. See Dorsey v. Reider, 139 So. 3d 860, 866 (Fla. 2014); Williams v. Davis, 974 So. 2d 1052, 1056 n.2 (Fla. 2007) (citing McCain, 593 So. 2d at 504); see also Orlando Exec. Park, Inc. v. Robbins, 433 So. 2d 491, 493 (Fla. 1983) (“[I]t is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care.” (citation omitted)), receded from on other grounds by Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995).

4 [HN4] Even when the duty is rooted in the fourth prong, factual inquiry into the existence of a duty is limited to whether the “defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So. 2d at 502.

5 Of course, as McCain acknowledges, [HN5] some facts must be established to determine whether a duty exists, such as the identity of the parties, their relationship, and whether that relationship qualifies as a special relationship recognized by tort law and subject to heightened duties. See 593 So. 2d at 503-04. However, further factual inquiry risks invasion of the province of the jury.

The Second District determined that a clearly recognized common law duty existed under both Rupp and Leahy. Rupp established that [HN6] school employees must reasonably supervise students during activities that are subject to the control of the school. 417 So. 2d at 666; see also Leahy, 450 So. 2d at 885 (explaining [**9] that the duty of supervision owed by a school to its students included a duty to prevent aggravation of an injury). [HN7] However, the Second District incorrectly expanded Florida law and invaded the province of the [*390] jury when it further considered whether post-injury efforts required Respondent to make available, diagnose the need for, or use the AED on Abel. Limones, 111 So. 3d at 905. This detailed analysis exceeded the threshold requirement that this Court established in McCain. Therefore, conflict jurisdiction exists to consider the merits of this case and we choose to exercise our discretion to resolve this conflict. [HN8] We review de novo rulings on summary judgment with respect to purely legal questions. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).

Common Law Duty

[HN9] As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. See Restatement (Second) of Torts § 314 cmt. a (1965). When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. See id. § 314A cmt. e. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that [**10] a school functions at least partially in the place of parents during the school day and school-sponsored activities. See, e.g., Nova Se. Univ., Inc. v. Gross, 758 So. 2d 86, 88-89 (Fla. 2000) (citing Rupp, 417 So. 2d at 666). Mandatory education of children also supports this relationship. Rupp, 417 So. 2d at 666.

[HN10] This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students. See Nova Se. Univ., 758 So. 2d at 88-89 (applying the in loco parentis doctrine to a relationship between an adult student and a university when the university mandated participation by the student in an off-campus internship); Rupp, 417 So. 2d at 666-67 (concluding that a duty of supervision existed during an unsanctioned off-campus hazing event by a school-sponsored club); cf. Kazanjian v. Sch. Bd. of Palm Beach Cnty., 967 So. 2d 259, 268 (Fla. 4th DCA 2007) (finding that the duty of supervision did not extend to a student who was injured when she left school premises without authorization). This duty to supervise requires teachers and other applicable school employees to act with reasonable care under the circumstances. Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 571 (11th Cir. 1997) (citing Florida law); see also Nova Se. Univ., 758 So. 2d at 90 (noting that the university had a duty to use reasonable care when it assigned students to off-campus internships). Thereafter, it [**11] is for the jury to determine whether, under the relevant circumstances, the school employee has acted unreasonably and, therefore, breached the duty owed. See La Petite Acad., Inc. v. Nassef ex rel. Knippel, 674 So. 2d 181, 182 (Fla. 2d DCA 1996) (citing Benton v. Sch. Bd. of Broward Cnty., 386 So. 2d 831, 834 (Fla. 4th DCA 1980)); see also Zalkin v. Am. Learning Sys., 639 So. 2d 1020, 1021 (Fla. 3d DCA 1994) (concluding that whether alleged negligent supervision by school employees resulted in injury to a student was a jury issue).

[HN11] Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury. See [*391] Limones, 111 So. 3d at 904 (citing Leahy, 450 So. 2d at 885); see also Zalkin, 639 So. 2d at 1021. Other jurisdictions have acknowledged similar duties owed to student athletes. See Avila v. Citrus Cmty. Coll. Dist., 38 Cal. 4th 148, 41 Cal. Rptr. 3d 299, 131 P.3d 383, 392 (Cal. 2006) (“[I]n interscholastic and intercollegiate competition, the host school and its agents owe a duty to home and visiting players alike to, at a minimum, not increase the risks inherent in the sport.”); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1370 (3d Cir. 1993) (college owed duty to recruited athlete to take reasonable safety precautions against the risk of death); see also Jarreau v. Orleans Parish School Bd., 600 So. 2d 1389, 1393 (La. Ct. App. 1992) (school board owed duty to [**12] injured high school athlete to provide access to medical treatment); Stineman v. Fontbonne Coll., 664 F.2d 1082, 1086 (8th Cir. 1981) (college owed duty to provide medical assistance to injured student athlete).

In this case, Abel was a student who was injured while he participated in a school-sponsored soccer game under the supervision of school officials. Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. See Rupp, 417 So. 2d at 666; Leahy, 450 So. 2d at 885. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now. We therefore leave it to the jury to determine, under the evidence presented, whether the particular actions of Respondent’s employees satisfied or breached the duty of reasonable care owed.

For several reasons, we reject the decision of the Second [**13] District to narrowly frame the issue as whether Respondent had a specified duty to diagnose the need for or use an AED on Abel. First, as stated above, reasonable care under the circumstances is not and should not be a fixed concept. Such a narrow definition of duty, a purely legal question, slides too easily into breach, a factual matter for the jury. See McCain, 593 So. 2d at 502-04. We reject the attempt below to specifically define each element in the scope of the duty as a matter of law, as this case attempted to remove all factual elements from the law and digitalize every aspect of human conduct. We are also cognizant of the concern raised by Respondent and its amici that if a defined duty could require every high school to provide an AED at every athletic practice and contest, the result could be great expense. Instead, the flexible nature of reasonable care delineated here can be evaluated on a case by case basis. The duty does not change with regard to using reasonable care to supervise and assist students, but the methods and means of fulfilling that duty will depend on the circumstances.

Additionally, we reject the position of the Second District and Respondent that L.A. Fitness governs this case. [**14] The Fourth District in L.A. Fitness determined that the duty owed by a commercial health club to an adult customer only required employees of the club to reasonably summon emergency responders for a patron in cardiac distress. 980 So. 2d at 562; see also De La Flor v. Ritz-Carlton Hotel Co., 930 F. Supp. 2d 1325, 1330 (S.D. Fla. 2013) (citing L.A. Fitness, 980 So. 2d at 562). [*392] The adult customer and the health club stand in a far different relationship than a student involved in school activities with school board officials. Although some courts in other jurisdictions have determined that fitness clubs and other commercial entities do not owe a legal duty to provide AEDs to adult customers,6 the commercial context and relationship of parties in these cases is a critical distinction from the case before us. Despite the fact the business proprietor-customer and school district-student relationships are both recognized as relationships, these relationships are markedly different. We initially note that the proprietor-customer relationship most frequently involves two adult parties, whereas the school-student relationship usually involves a minor. Furthermore, the business invitee freely enters into a commercial relationship with the proprietor.

6 See, e.g., Verdugo v. Target Corp., 59 Cal. 4th 312, 173 Cal. Rptr. 3d 662, 327 P.3d 774, 792 (Cal. 2014) (holding that a retailer did not owe a common law duty to [**15] acquire and make available an AED to a patron); Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 985 N.E.2d 128, 132, 961 N.Y.S.2d 364 (N.Y. 2013) (statute that required large health clubs to acquire an AED did not impose duty to use it); Rotolo v. San Jose Sports & Entm’t, LLC, 151 Cal. App. 4th 307, 59 Cal. Rptr. 3d 770, 774-75 (Cal. Ct. App. 2007) (refusing to impose a duty on owners of a sports facility to notify patrons of the existence and location of an AED), modified on other grounds by Verdugo, 327 P.3d at 784; Salte v. YMCA of Metro. Chi. Found., 351 Ill. App. 3d 524, 814 N.E.2d 610, 615, 286 Ill. Dec. 622 (Ill. App. Ct. 2004) (holding that a health club’s duty of reasonable care to its guests did not require it to obtain and use an AED on a guest).

By contrast, [HN12] Florida, along with the rest of the country, has mandated education of our minor children. § 1003.21, Fla. Stat. (2014). Compulsory schooling creates a unique relationship, a fact that has been recognized both by Florida courts and the Florida Legislature. Florida common law recognizes a specific duty of supervision owed to students and a duty to aid students that is not otherwise owed to the business customer. See Rupp, 417 So. 2d at 666-67. Furthermore, the Florida Legislature has specifically mandated that high schools that participate in interscholastic athletics acquire an AED and train appropriate personnel in its use. § 1006.165(1)-(2), Fla. Stat. Notably, the Legislature has not so regulated health clubs or other commercial facilities, even though the foreseeability for the need to use an AED may be similar in both contexts. See [**16] L.A. Fitness, 980 So. 2d at 561. The relationship between a commercial entity and its patron quite simply cannot be compared to that between a school and its students. We therefore conclude that the facts of this case are not comparable to those in L.A. Fitness.

Other Sources of Duty

Although Petitioners alleged in their pleadings that Respondent owed a statutory duty under section 1006.165, Florida Statutes, Petitioners did not clearly articulate before this Court the basis for such a duty. We therefore do not address it here. See, e.g., Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004). Moreover, because we decide as a dispositive issue that Respondent’s motion for summary judgment was improperly granted because Respondent owed a common law duty to Abel, we decline to address Petitioners’ claim under the undertaker’s doctrine.

Immunity

Because we conclude that Respondent owed a common law duty to Abel, we must now consider whether Respondent is immune from suit under sections 1006.165 and 768.1325, Florida Statutes. [*393] See Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009) (emphasizing that the existence of a duty is “conceptually distinct” from the determination of whether a party is entitled to immunity). Respondent claims that these statutory provisions grant it immunity. [HN13] The question of statutory immunity is a legal question that we review de novo. See, e.g., Found. Health v. Westside EKG Assocs., 944 So. 2d 188, 193-94 (Fla. 2006).

[HN14] Section 1006.165 requires all public schools [**17] that are members of the Florida High School Athletic Association to have an operational AED on school property and to train “all employees or volunteers who are reasonably expected to use the device” in its application. § 1006.165(1)-(2), Fla. Stat. Further, “[t]he use of [AEDs] by employees and volunteers is covered under [sections] 768.13 and 768.1325,” which generally regulate immunity under Florida’s Good Samaritan Act and the Cardiac Arrest Survival Act. § 1006.165(4).7 Subsection (3) of the Cardiac Arrest Survival Act states:

[HN15] Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an [AED] on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community organization . . . is immune from such liability . . . .

§ 768.1325(3), Fla. Stat. (emphasis supplied). There is no immunity for criminal misuse, gross negligence, or similarly egregious misuse of an AED. § 768.1325(4)(a).

7 Although section 1006.165 references [**18] both the Good Samaritan Act, section 768.13, and the Cardiac Arrest Survival Act, section 768.1325, Respondent seeks immunity only under the Cardiac Arrest Survival Act. We therefore do not consider whether the Good Samaritan Act provides immunity under these circumstances. See, e.g., Chamberlain, 881 So. 2d at 1103.

[HN16] Under a plain reading of the statute, this subsection creates two classes of parties that may be immune from liability arising from the misuse of AEDs: users (actual or attempted), and acquirers. Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Id. (emphasis supplied). Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used. It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under [**19] section 768.1325 and such section has absolutely no application here.

Despite the protests of Respondent and its amici, we do not believe that this straightforward reading of the statute defeats the legislative intent. The passage of section 1006.165 demonstrates that the Legislature was clearly concerned about the risk of cardiac arrest among high school athletes. The Legislature also explicitly [*394] linked this statute to the Cardiac Arrest Survival Act, which grants immunity for the use–actual or attempted–of an AED. The emphasis on the use or attempted use of an AED in the statute underscores the intent of the Legislature to encourage bystanders to use a potentially life-saving AED when appropriate. Without this grant of immunity, bystanders would arguably be more likely to hesitate to use an AED for fear of potential liability. To extend the shield of immunity to those who make no attempt to use an AED would defeat the intended purpose of the statute and discourage the use of AEDs in emergency situations. The argument that immunity applies when an AED is not used is spurious. The immunity is with regard to harm caused by the use of an AED, not a failure to otherwise use reasonable care.

CONCLUSION

We hold that Respondent [**20] owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes. We therefore quash the decision below and remand this case for trial.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

DISSENT BY: CANADY

DISSENT

CANADY, J., dissenting.

Because I conclude that the decision of the district court of appeal, Limones v. School District of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), does not expressly and directly conflict with McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), I would dismiss review of this case for lack of jurisdiction under article V, section 3(b)(3), of the Florida Constitution. I therefore dissent.

In McCain, the plaintiff was injured when the blade of a trencher he was operating made contact with an underground electrical cable owned by Florida Power Corporation. The Court held that because cables transmitting electricity had “unquestioned power to kill or maim,” the defendant had created a “foreseeable zone of risk” and therefore, as a matter [**21] of law, had a duty to take reasonable precautions to prevent injury to others. McCain, 593 So. 2d at 503-04. In Limones, the district court of appeal held as a matter of law that a school district “had no common law duty to make available, diagnose the need for, or use” an automated external defibrillator on a student athlete who “collapsed on the field . . . stopped breathing and had no discernible pulse” during a high school soccer match. Limones, 111 So. 3d at 903, 906. The two decisions are clearly distinguishable based on their totally different facts. Therefore, there is no express and direct conflict and we lack jurisdiction to review the district court’s decision. POLSTON, J., concurs.


Florida AED Statute for Schools

Fla. Stat. § 1006.165 (2016)

§ 1006.165. Automated external defibrillator; user training.

(1) Each public school that is a member of the Florida High School Athletic Association must have an operational automated external defibrillator on the school grounds. Public and private partnerships are encouraged to cover the cost associated with the purchase and placement of the defibrillator and training in the use of the defibrillator.

(2) Each school must ensure that all employees or volunteers who are reasonably expected to use the device obtain appropriate training, including completion of a course in cardiopulmonary resuscitation or a basic first aid course that includes cardiopulmonary resuscitation training, and demonstrated proficiency in the use of an automated external defibrillator.

(3) The location of each automated external defibrillator must be registered with a local emergency medical services medical director.

(4) The use of automated external defibrillators by employees and volunteers is covered under ss. 768.13 and 768.1325.


Florida AED Good Samaritan Act

Fla. Stat. § 768.1325 (2016)

§ 768.1325. Cardiac Arrest Survival Act; immunity from civil liability.

(1) This section may be cited as the “Cardiac Arrest Survival Act.”

(2) As used in this section:

(a) “Perceived medical emergency” means circumstances in which the behavior of an individual leads a reasonable person to believe that the individual is experiencing a life-threatening medical condition that requires an immediate medical response regarding the heart or other cardiopulmonary functioning of the individual.

(b) “Automated external defibrillator device” means a lifesaving defibrillator device that:

1. Is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act.

2. Is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of determining without intervention by the user of the device whether defibrillation should be performed.

3. Upon determining that defibrillation should be performed, is able to deliver an electrical shock to an individual.

(c) “Harm” means damage or loss of any and all types, including, but not limited to, physical, nonphysical, economic, noneconomic, actual, compensatory, consequential, incidental, and punitive damages or losses.

(3) Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723, is immune from such liability, if the harm was not due to the failure of such person to:

(a) Properly maintain and test the device; or

(b) Provide appropriate training in the use of the device to an employee or agent of the acquirer when the employee or agent was the person who used the device on the victim, except that such requirement of training does not apply if:

1. The device is equipped with audible, visual, or written instructions on its use, including any such visual or written instructions posted on or adjacent to the device;

2. The employee or agent was not an employee or agent who would have been reasonably expected to use the device; or

3. The period of time elapsing between the engagement of the person as an employee or agent and the occurrence of the harm, or between the acquisition of the device and the occurrence of the harm in any case in which the device was acquired after engagement of the employee or agent, was not a reasonably sufficient period in which to provide the training.

(4) Immunity under subsection (3) does not apply to a person if:

(a) The harm involved was caused by that person’s willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed;

(b) The person is a licensed or certified health professional who used the automated external defibrillator device while acting within the scope of the license or certification of the professional and within the scope of the employment or agency of the professional;

(c) The person is a hospital, clinic, or other entity whose primary purpose is providing health care directly to patients, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent;

(d) The person is an acquirer of the device who leased the device to a health care entity, or who otherwise provided the device to such entity for compensation without selling the device to the entity, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent; or

(e) The person is the manufacturer of the device.

(5) This section does not establish any cause of action. This section does not require that an automated external defibrillator device be placed at any building or other location or require an acquirer to make available on its premises one or more employees or agents trained in the use of the device.

(6) An insurer may not require an acquirer of an automated external defibrillator device which is a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723 to purchase medical malpractice liability coverage as a condition of issuing any other coverage carried by the association, and an insurer may not exclude damages resulting from the use of an automated external defibrillator device from coverage under a general liability policy issued to an association.


Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Negligence per se is an elusive legal issue that generally prevents a release to be effective as in this case. Understanding the issue for your state is important.

Citation Knarr v. Chapman School of Seamanship, 2000 U.S. Dist. LEXIS 5351

State: Pennsylvania, United States District Court for the eastern District of Pennsylvania

Plaintiff: Jean Knarr & Lester Knarr

Defendant: Chapman School of Seamanship

Plaintiff Claims: negligence per se

Defendant Defenses: release and plaintiff failed to plead enough facts to establish a negligence per se case

Holding: for the plaintiff

Year: 2000

Negligence per se cases are arising with more frequency. They are a way the plaintiff can beat the release in recreational activities. In most states, a successful negligence per se claim is not dismissed because of a release, and the plaintiff can go to trial. On top of that, Juries take a dim view of a defendant who did not follow the law or rules for his industry.

In this case, the plaintiff (wife) enrolled in a seamanship school with the defendant in Florida. (Thus the reason why the Federal District Court was hearing the case.)

 

The defendant filed a motion for summary judgment based on the release; the plaintiff had signed and argued the negligence per se claims of the plaintiff should be dismissed because the plaintiff failed to present evidence that the defendant had violated a rule or statute. This was the second motion for summary judgement; the first was over the issues of the release and the simple or ordinary negligence claims.

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

Florida’s law allows a release to stop a negligence claim. (See Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.; 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.; Release for bicycle tour wins on appeal but barely; Electronic release upheld in Florida federal court for surfing on a cruise ship, Florida statute that allows a parent to release a minor’s right to sue)

However, Florida does not allow a release to stop a negligence per se claim.

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

Under Florida’s law, negligence per se is defined as:

According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.”

Negligence per se under Florida’s law was defined broadly: Florida’s state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. Negligence per se was applied to violation of Florida Department of Health and Rehabilitative Service Rules, violations of administrative regulations, and FAA regulations. (Compare this to the limited application of negligence per se in a Colorado rafting case in 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.)

The issue here was whether any US Coast Guard regulation applied to this defendant and the ship the injury occurred upon and whether the regulation applied to the ladder, specifically.

Here the court found that the boat was of the size the regulation was applied to. The court also found the boat was “for hire” because the plaintiff had paid to be on the boat to take the seamanship course. The final issue was whether the regulation, which was a standard created by ANSI, (American National Standards Institute) applied in this case.

The court found the regulation was specifically adopted for situations, specifically like this:

One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic.

The reference was to the sinking of the Titanic.

The final issue was whether the claims of the plaintiff, as plead, fit the requirement for negligence per se, an injury the regulations were designed to prevent. Here again, the court found the pleadings were not specific, but outlined enough of the issues to meet the definitions of a ladder that was dangerous. This was based more on the failure of the defendant to show the ladder met the ANSI and subsequent US Coast Guard regulations.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some of which will, no doubt, be the subject of expert opinions.

Consequently, the case was allowed to proceed.

So Now What?

If you were to speculate, this boat was probably a sail boat created for some owner. It has been converted to a vessel for hire when the classes were offered by the owner. As such, no standard applied to the vessel as a pleasure vessel, when it was being built; however, now that it fit the regulations, it had to meet the regulations.

Another scenario could be the vessel was old enough that it was built before the regulations were in effect.

Both scenarios can be found in outdoor programs daily.  Land is purchased for a recreation program with buildings already on the land. No emergency exit from the second floor, no fire alarms, all could lead to losing a law suit.

A release is a great line of defense against claims, but fraud, gross negligence and as seen here, negligence per se will not be stopped by a release. Consequently, risk management and education is a never-ending requirement for a recreation provider to be on the lookout for.

For other articles, looking at Negligence per se issues see:

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability  http://rec-law.us/wEIvAW

10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.            http://rec-law.us/1njzlhf

If you really are bad, a judge will figure out a way to void your release         http://rec-law.us/Xyu8CZ

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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

#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, Vessel for Hire, Sailing, Seamanship, Negligence per se, Release, Waiver, Diversity, Florida,

 


Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Jean Knarr & Lester Knarr v. Chapman School Of Seamanship

CIVIL ACTION NO. 99-952

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2000 U.S. Dist. LEXIS 5351

April 14, 2000, Decided

April 14, 2000, Filed

COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.

For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.

JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: JACOB P. HART

OPINION

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

April 14, 2000

The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.

[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.

Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.

I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .

(Chapman Application/Registration Form).

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).

(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.

Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.

In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).

The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.

We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).

However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.

[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). 1 Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.

1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.

[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.

The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).

The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.

Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.

In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.

An appropriate order follows.

ORDER

AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE


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

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

Year: 2013

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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Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573

Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573

Carol Ann Gillette, Appellant, v. All Pro Sports, LLC., D/B/A Family Fun Town, Appellee.

Case No. 5D12-1527

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573

December 6, 2013, Opinion Filed

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY: [*1]

Appeal from the Circuit Court for Volusia County, Terence R. Perkins, Judge.

COUNSEL: D. Paul McCaskill of David & Philpot, P.A., and J. Michael Matthews of J. Michael Matthews, P.A. Maitland, for Appellant.

Bruce R. Bogan of Hilyard, Bogan & Palmer, PA, Orlando, for Appellee.

JUDGES: TORPY, C.J., LAWSON and WALLIS, JJ., concur.

OPINION

PER CURIAM.

Appellant challenges a summary final judgment in favor of Appellee on her complaint for injuries she received in a Go-Kart accident at a facility operated by Appellee. Appellant contends that 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. The lower court held that a waiver and release form signed by Appellant precluded her negligence action. We reverse.

The sole issue on appeal is whether the waiver and release signed by Appellant effectively precludes an action based on Appellee’s purported negligence. The document provides in material part as follows:

WAIVER AND RELEASE FROM LIABILITY FOR GO CARTS AND TRACK

In consideration for being permitted to drive Go Karts at Family Fun Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as follows:

1. I HAVE READ [*2] THE RULES FOR OPERATING THE Go Karts, and accept full responsibility for obeying the rules and all other posted rules and warning signs;

2. I understand that the course of [sic] which the Go Karts operate has curves, which require a degree of skill and responsibility to navigate safely. I have the necessary skill and will exercise the responsibility necessary to operate the Go Karts and navigate the course safely;

3. The Go Karts are controlled by individual drivers, who are capable of making mistakes and intentionally causing harm to others. I could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inactions of another driver. I freely and knowingly assume this risk. I take full responsibility for any claims or personal injury, death, or damage to personal property arising out of my use of the G [sic] Karts and/or the Go Kart track, whether to me or to other people. On behalf of myself, my heirs, my assigns and my next of kin, I waive all claims for damages, injuries and death sustained to me or property that I may have against Family Fun Town, and its members, managers, agents, employees, successors, and assigns (each a “Released [*3] Party”).

4. I have been provided the opportunity to inspect the Go Karts and the track prior to signing this Waiver AND Release, and the conditions of each is completely satisfactory to me. If they were not, I would not sign this document or operate or ride in the Go Karts and the track are [sic] completely satisfactory to me.

5. I understand that the terms of this release are contractual and not a mere recital, and that I have signed this document of my own free act.

I have read this waiver and release in its entirety. I understand that I am assuming all the risk inherent in operating and/or riding the Go Karts on the track. I understand that it is a release of all claims that I may have against any released part [sic]. I understand that this is the entire agreement between me and any released party and that it cannot be modified or changed in any way by the representation or statements by any released party or by me. I voluntarily sign my name as evidence of my acceptance of all the provisions in this waiver and release and my agreement to be bound by them.

Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly [*4] construed against the party seeking to be relieved of liability. UCF Athletics Ass’n v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) (citing Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006); Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998)). 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. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001) (citing Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590, 591 (Fla. 5th DCA 1998)).

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.

REVERSED AND REMANDED.

TORPY, C.J., LAWSON and WALLIS, JJ., concur.


Church was not liable for injuries on a canoe trip because the church did not control the land along the river.

There can be no negligence if there is no duty; no control means no duty.

Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

State: Florida, Court of Appeal of Florida, First District

Plaintiff: John Clark

Defendant: Lumbermans Mutual Insurance Company and Orange Park Assembly of God

Plaintiff Claims: duty to warn of the shallowness of the water in the beach area, failed to determine in advance the safe and unsafe areas to swim along the St. Mary’s River, and failed to point out proper sites for swimming and diving by the trip members, failed to adequately supervise the canoeing trip

Defendant Defenses: No duty

Holding: for the defendant

Year: 1985

This is a simple and sad case. A church organized a canoe trip through a livery. One of the obvious benefits of a summer canoe trip was swimming and playing in the water. The plaintiff and his friend in their canoe got to a beach first, beached their canoe and dove into the water.

The friend dove into the water first, and the plaintiff followed in the same direction and dove second. The plaintiff’s dive was different, not a shallow dive. He broke his neck and rendered himself a quadriplegic.

There were no obstructions in the water where the accident occurred and the 21-year-old plaintiff was knowledgeable about water sports and activities.

The plaintiff sued the church and the church’s insurance company. The trial court dismissed the complaint. The canoe livery was not part of this suit, and it is unknown if they were ever defendants. This appeal followed.

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

The basics of the plaintiff’s claims were the defendant church organized the trip. Therefore, they were responsible of all aspects of the trip. That control allegedly included the land along the trip as well as the participants. The plaintiff was 21 and argued the church was in control of him, even though he acted without the church’s knowledge or consent and before the “church” through an assistant minister arrived on the scene.

The court first went through the steps under Florida’s law to determine the requirements to dismiss a case. Motions to dismiss are rarely granted.

In order to prevail on a motion for summary judgment in a negligence action, the defendant must show either no negligence on his part proximately resulting in injury to the plaintiff, or that the plaintiff’s negligence was the sole proximate cause of his injury. 

Negligence requires more than the mere occurrence of an accident.

The plaintiff argued that the defendant church was in control of the trip, acting as a guide for the trip and by allowing he to access the beach was liable as a landowner for the beach. The plaintiff argued defendant church constructively possessed the beach.

The court did not accept this argument because the plaintiff arrived at the beach first and before the leader of the trip; the assistant minister who was a paid employee, arrived minutes later. Upon the “church’s” arrival no one tried to exercise defacto control over the beach or the activity which argued was control over the beach.

The next argument was the church was liable for not making sure the beach was safe. However, the plaintiff found the beach and dove without the church’s permission. On top of that, there were not obstructions in the river, which would make the beach or river unsafe.

The court also looked at the age of the plaintiff. The plaintiff “possessed sufficient maturity to appreciate the danger, and was not in a dependency relationship with the appellee church.”

Another argument was the one that created concern and interest. “Appellant also maintains that the church assumed a duty of due care by voluntarily acting as a “tour guide” in organizing and conducting the canoeing trip upon which appellant was injured…”

A prior case Florida case on appeal had held a tour service liable for the accident that occurred in a museum because they had the ability to check out where the tour was going. This legal theory is based on “an action undertaken for the benefit of another, even if performed gratuitously, must be performed in accordance with the duty to exercise due care.”

The court held that the tour company was a common carrier in the other decision, and it did not apply in this case because the circumstances did not create a duty on the part of the church. The liability of a common carrier is the highest owed to a party. Common carriers are usually defined as airlines, trains those transportation services where the customer has no ability to protect themselves or control their situation. The court also found:

Even assuming, arguendo, that the church owed a duty of adequate supervision to appellant, the breach of which would render it liable for ordinary negligence, appellant can be barred from recovery if his own action in diving into the shallow water was the sole proximate cause of his accident.

This statement sounds like an assumption of the risk argument, but is actually a duty statement. There is no liability, unless there is a duty. There cannot be a duty when one is acting on one’s own. “A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage.”

So Now What?

Sad when a young man spends the rest of his live in a wheel chair. However, the actions that caused his injuries were solely those of his own doing.

The argument that you are a guide when you undertake to organize a trip was interesting. A lot of this would hinge on how you are accomplishing this, what you were saying to get the trip put together. It is important when creating outings or trips like this to identify the responsibilities of the parties. Identify in advance, who is responsible for what. You should always identify that adults are always responsible for themselves.

That division of responsibility is best explained in writing and accepted in writing by the customer. That document is normally called a release.

The way you outline the responsibilities you or the organization you represent when you start organizing a trip will create the duties you will owe. The younger the people on the trip, (kids), and the more the people rely on your statements, the greater the chance you will be held to a duty. If you imply you are creating a duty, then you have created a duty and you will be liable for breaching that duty.

The bigger issue is the assigning of a greater duty by the courts based upon the type of tour being offered. You need to identify in advance that your actions in moving your customers from one location to the activity are done as part of the activity, not as a common carrier. Your liability in the transportation is incidental to the activity, or you may be held to a higher standard of care for all parts of the activity.

What do you think? Leave a comment.

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Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

John Clark, Appellant, v. Lumbermans Mutual Insurance Company and Orange Park Assembly of God, Appellees

No. AU-168

Court of Appeal of Florida, First District

465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

March 7, 1985

COUNSEL: Adam H. Lawrence of Lawrence & Daniels, Miami; and Brent M. Turbow, Jacksonville, for Appellant.

Charles Cook Howell, III of Howell, Liles, Braddock & Milton, Jacksonville, for Appellee.

JUDGES: Smith, L., J. Mills and Nimmons, JJ., concur.

OPINION BY: SMITH

OPINION

[*553] John Clark, plaintiff below, appeals a final summary judgment in favor of the appellees in this negligence action. After an examination of the whole record, we conclude that no interpretation of the undisputed material facts would support a finding of liability for negligence on the part of the appellee Orange Park Assembly of God (hereinafter “church”). We affirm.

The following facts, taken from depositions filed in this cause, are germane to this appeal. Appellant suffered a broken neck and was rendered a quadriplegic during a diving accident on the St. Mary’s River, located in Nassau County, Florida. The accident occurred during a canoe trip and picnic sponsored, planned and conducted by the appellee church. The church had hired Mr. Gary Hines to be its “minister of youth.” Hines, [**2] a paid, full-time employee of the church, was to direct and coordinate the activities of the church’s youthful members. The trip in question took place June 13, 1981. Its logistics were planned and coordinated by Hines. Approximately 40 to 50 people, including appellant, ultimately participated in the trip. Appellant, a high school graduate, was twenty-one years of age at the time of his injury. He was, in his own words, in excellent health, a good swimmer who was familiar with various water sports.

On the day of appellant’s accident, trip members were transported by church bus and van to a canoe rental establishment located on the St. Mary’s River called the Canoe Outpost. Hines did not attempt extensive instructions to trip members regarding canoe operation or the physical characteristics of the river they were about to traverse. Trip members were instructed by Hines that suitable beaches for swimming existed on the river; however, Hines acknowledged that he had not made inquiries prior to the trip as to the location or suitability of any of the river’s beaches.

During the trip, appellant and a canoeing companion, Lee Brannen, sighted what they thought was a suitable place [**3] for swimming, and beached their canoes. Brannen testified that he ran out into the water approximately three steps and then executed a shallow, racing-type dive into the water, which was approximately chest deep on Brannen, who was six feet one inch tall. Brannen testified he felt it would be “crazy” to attempt a “deep dive,” as he had not yet ascertained the exact depth of the water. Appellant then attempted to execute a similar dive, following what both he and Brannen testified was essentially the same path Brannen had taken in making his dive. Both testified that appellant’s dive differed from Brannen’s. Brannen testified that appellant had not run as far into the water as Brannen had, and that appellant jumped somewhat higher prior to the dive in a manner Brannen characterized as a “piking” of appellant’s body, with the result that appellant’s head and arms preceded the rest of his body into the water. Unfortunately, the result of appellant’s attempted dive was a broken neck and consequent paralysis. The record is unclear as to what, exactly, caused appellant’s injuries, since appellant was unable to state categorically that he hit his head on the river bottom as a result [**4] of his dive. However, all deponents testified that the river bottom area where appellant dove was clear of obstructions.

Appellant instituted the pending action alleging, among other things, that the appellee church had violated its duty to warn of the shallowness of the water in the beach area, where appellant had attempted his dive, failed to determine in advance the safe and unsafe areas to swim along the [*554] St. Mary’s River, and failed to point out proper sites for swimming and diving by the trip members. Appellant also alleged that the church had failed to adequately supervise the canoeing trip.

Appellees moved for summary judgment, asserting that the church breached no legal duty owed the appellant; that appellant had actual knowledge of the allegedly dangerous condition of the beach where his accident occurred; and that appellant’s actions constituted the sole proximate cause of his injury. The trial court granted the motion for summary judgment, finding that the beach area where appellant’s accident occurred contained no latent or unknown dangers; that the appellee church did not breach any legal duty owed the appellant; and that appellant’s actions were the [**5] sole proximate cause of his injury. This appeal followed.

We are governed by certain well known principles applicable in negligence actions. [HN1] Issues of negligence and probable cause will normally be answerable only by a jury, and not by motion for summary judgment, unless the facts adduced “point to but one possible conclusion.” Cassel v. Price, 396 So.2d 258, 260 (Fla. 1st DCA 1981) (citations omitted), rev. den. mem., 407 So.2d 1102 (Fla. 1981). In order to prevail on a motion for summary judgment in a negligence action, the defendant must show either no negligence on his part proximately resulting in injury to the plaintiff, or that the plaintiff’s negligence was the sole proximate cause of his injury. Goode v. Walt Disney World Co., 425 So.2d 1151, 1154 (Fla. 5th DCA 1982), rev. den. mem., 436 So.2d 101 (Fla. 1983). However, as often stated, “the mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone.” Cassel v. Price, supra, at 264 (citations omitted). Judged by these standards, we find that the trial court correctly granted appellees’ motion for summary judgment.

[**6] Initially, we find without merit appellant’s attempt to affix liability based upon breach of a duty of due care by the church as a “possessor” or “occupier” of land. Appellant contends that the church, by allowing appellant and other members of the trip to utilize the beach where appellant was injured, constructively “possessed” this portion of the beach area, citing Arias v. State Farm Fire and Casualty Company, 426 So.2d 1136 (Fla. 1st DCA 1983). We disagree. In Arias, the plaintiff was injured after a “john boat” in which she was a passenger collided with a partially submerged diving dock located in a lake directly in front of lakefront property owned by a defendant on Lake Hampton, in Bradford County. The defendant in Arias argued that since the land beneath the lake was owned by the state, rather than by the defendant, he was not in a position to exercise control over the land upon which the submerged dock rested, and hence he owed the plaintiff no duty to warn of the hazard. The Arias court rejected this contention, stating:

[HN2] The liability of an occupant of real property for injuries caused by an alleged dangerous defective condition on the premises [**7] depends generally upon his control of the property, regardless of whether he had title thereto, or whether he has a superior right to possession of property which is in the possession and control of another. (citation omitted)

Id. at 1138.

There are no facts in this case which would tend to satisfy the elements of “possession” or “control” which led to the court’s decision in Arias. The facts in Arias were that the nearly submerged dock was located several hundred feet directly in front of the defendant’s lakefront property, and that while it was located in the lake before defendant bought the property, the defendant had modified it by placing a thin shelled cement surface on the dock. The Arias court held that it could not be determined, as a matter of law, that the defendant had “failed to maintain the requisite control over the boat dock.” 426 So.2d at 1138. Here, by contrast, the church had no actual or constructive “presence” at the beach prior to the accident. [*555] Appellant and Brannen were the first two canoeists to reach the beach, and hence “occupy” it. Hines arrived a number of minutes after the appellant and other members of the group, [**8] and made no attempt to exercise “de facto” control over the beach or over activities on the beach.

Moreover, the view that potential liability may exist under facts such as found in Arias is premised upon the existence of a hidden danger of which the land owner or occupier has or should have superior knowledge, as compared to the injured party. Here, no evidence was produced to establish the existence of any hidden dangers at the situs of the accident. It was uncontradicted that the river bottom and the beach contained no rocks or obstructions. Nor can the depth of the water itself have been considered a hidden danger, since both appellant and Brannen testified that they were well aware of its relatively shallow depth. Switzer v. Dye, 177 So. 2d 539 (Fla. 1st DCA 1965). Appellant testified that he was aware of the danger of diving into shallow water, and was aware that the water depth at the beach where he was injured was indeed properly characterized as shallow. Hence, there existed in the case at bar no “hidden danger” so as to trigger the rule in Arias.

We think the same result is required here if the potential liability of the church is considered in relation [**9] to its duty to investigate the river for dangerous conditions. The “harmful condition” of the beach (assuming, without accepting, the correctness of this characterization by appellant) was recognized and hence was obvious to all who testified below. Therefore, no breach of duty occurred, since the “harmful condition” was in fact obvious to appellant, who indisputably possessed sufficient maturity to appreciate the danger, and was not in a dependency relationship with the appellee church. See Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert. den., 446 U.S. 909, 100 S. Ct. 1836, 64 L. Ed. 2d 261 (1980); cf. Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (school children between the ages of seventeen and eighteen considered to be under an in loco parentis relationship vis-a-vis school officials).

Appellant also maintains that the church assumed a duty of due care by voluntarily acting as a “tour guide” in organizing and conducting the canoeing trip upon which appellant was injured, citing Kaufman v. A-1 Bus Lines, Inc., 416 So.2d 863 (Fla. 3d DCA 1982) (Kaufman II). There, the plaintiff was injured when she fell off a cat-walk while touring a museum visited by [**10] tour groups sponsored by the defendant. The Third District had previously affirmed the Kaufman trial court’s dismissal of Ms. Kaufman’s initial complaint, but did so without prejudice to her right to file an amended complaint alleging defendant’s actual knowledge of the allegedly dangerous condition that caused her injury. Kaufman v. A-1 Bus Lines, Inc., 363 So. 2d 61 (Fla. 3d DCA 1978) (Kaufman I). Subsequently, Ms. Kaufman filed an amended complaint alleging that the defendant’s actual knowledge of the allegedly dangerous condition causing her injury created a duty to warn on the defendant’s part. The court in Kaufman II found that the defendant could be held liable for negligence while acting as a tour guide, based on the well-known proposition that [HN3] an action undertaken for the benefit of another, even if performed gratuitously, must be performed in accordance with the duty to exercise due care. 416 So. 2d at 864; see also Padgett v. School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981).

We agree with appellant that a church’s sponsorship and organization of a canoeing trip could give rise to a legal duty to exercise reasonable care in exercising [**11] these responsibilities. Padgett, supra. We observe, however, that Kaufman II is distinguishable from the case at bar due to the Kaufman II defendant’s status as a common carrier. Furthermore, in view of the undisputed evidence concerning the circumstances under which the accident occurred, we do not find it necessary to examine the [*556] extent of the church’s duty in this case, or to categorize the relationship between plaintiff and defendant here, which would otherwise guide our decision in determining whether the church carried its burden of showing the absence of evidence indicating a breach of duty by the church causing injury to appellant, as required to entitle it to summary judgment. 1

1 Cf., Section 768.13, Florida Statutes (1981), the “Good Samaritan Act,” with commercial transactions (Kaufman II, the “tour guide” situation) and dependency relationships (Rupp; schools in an in loco parentis relationship with students).

Even assuming, arguendo, that the church [**12] owed a duty of adequate supervision to appellant, the breach of which would render it liable for ordinary negligence, appellant can be barred from recovery if his own action in diving into the shallow water was the sole proximate cause of his accident. Phillips v. Styers, 388 So. 2d 221 (Fla. 2d DCA 1980), quoting Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973): ” [HN4] A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage.” We hold that appellant was properly barred from proceeding further with his claim because the evidence below is susceptible to no conclusion other than that he had sufficient intelligence, experience, and knowledge to – and in fact did – both detect and appreciate the physical characteristics of the swimming place in question and the potential danger involved in attempting his shallow water dive. See, Lister v. Campbell, 371 So. 2d 133 (Fla. 1st DCA 1979), Hughes v. Roarin 20’s, Inc., 455 So. 2d 422 (Fla. 2d DCA 1984). 2

2 See, also, Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 (1969), appeal dismissed, 400 U.S. 922, 91 S. Ct. 192, 27 L. Ed. 2d 183 (1970) (church and its representatives held not liable for negligent supervision of Sunday school picnic at lake resort during which youth drowned while attempting to swim from platform in deep water back to shore).

[**13] For the foregoing reasons, the judgment below is

AFFIRMED.

MILLS and NIMMONS, JJ., CONCUR.


Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

Stacy Sanislo, et al., Petitioners, vs. Give Kids The World, Inc., Respondent.

No. SC12-2409

SUPREME COURT OF FLORIDA

157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

February 12, 2015, Decided

PRIOR HISTORY: [*1] (Osceola County). Fifth District – Case No. 5D11-748. Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions.

Give Kids The World, Inc. v. Sanislo, 98 So. 3d 759, 2012 Fla. App. LEXIS 17750 (Fla. Dist. Ct. App. 5th Dist., 2012)

COUNSEL: Christopher Vincent Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, Florida; and Michael J. Damaso, II of Wooten, Kimbrough & Normand, P.A., Orlando, Florida, for Petitioners.

Dennis Richard O’Connor, Derek James Angell, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Winter Park, Florida, for Respondent.

Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association.

JUDGES: LABARGA, C.J., and PERRY, J., concur. CANADY and POLSTON, JJ., concur in result. LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.

OPINION

PER CURIAM.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), in which the Fifth District held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts. The district court certified that its decision is in direct conflict with [*2] the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal.

FACTS AND PROCEDURAL HISTORY

This action arose as a result of a negligence action brought against Give Kids the World, Inc., (Give Kids the World), a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village,1 by Stacy and Eric Sanislo, a married couple who brought their seriously ill child to the village, for injuries sustained by Ms. Sanislo while on the vacation.

1 Fulfillment of a child’s wish is accomplished in conjunction with the Make-A-Wish Foundation. See Give Kids the World, 98 So. 3d at 760 n.1.

As part of the application process for the “storybook” vacation, 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. After the wish was granted, the Sanislos arrived at the resort village located in Kissimmee, Florida, and again signed a liability [*3] release form. The wish request form and liability release form both provide, in pertinent part:

I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants, and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind. . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from and against 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. . . .

While at the resort village, the Sanislos and their children participated in the horse-drawn wagon ride operated by Heavenly Hoofs, Inc. The wagon, manufactured by codefendant Thornlea Carriages, Inc., was equipped with a rear, pneumatic lift to allow those in wheelchairs to participate in [*4] the ride. The carriage was carrying the Sanislos’ children. The Sanislos stepped onto the wheelchair lift of the wagon to pose for a picture and the lift collapsed due to weight overload, causing injuries to Ms. Sanislo’s left hip and lower back.

The Sanislos subsequently brought suit in the circuit court for Osceola County against Give Kids the World alleging Ms. Sanislo’s injuries were caused by Give Kids the World’s negligence. See id. at 761. Give Kids the World asserted an affirmative defense of release, and filed a motion for summary judgment arguing that the Sanislos signed releases that precluded an action for negligence. Id. The Sanislos also filed a motion for partial summary judgment on Give Kids the World’s affirmative defense of release. The trial court granted the Sanislos’ motion for summary judgment and denied Give Kids the World’s motion for summary judgment. Thus, the negligence action proceeded to trial. Following a jury verdict, judgment was entered in the Sanislos’ favor awarding them $55,443.43 for damages incurred as a result of the injury and costs of $16,448.61.

On appeal to the Fifth District, Give Kids the World argued that the lower court erred by denying its pretrial [*5] motion for summary judgment on its affirmative defense of release because the release was unambiguous and did not contravene public policy. The Fifth District reversed the trial court’s denial of summary judgment, holding that an exculpatory clause releasing Give Kids the World 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. Id. at 761-62. 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 [*6] context and the Sanislos were not required to request a vacation with Give Kids the World or go on the vacation.

In Levine, Van Tuyn, Goyings, and Tout, the remaining four district courts of appeal held that exculpatory clauses are ineffective to bar a negligence action unless there is express language referring to release of the defendant for its own negligence or negligent acts. Accordingly, the conflict presented for this Court’s resolution is whether an exculpatory clause is ambiguous and thus ineffective to bar a negligence action due to the absence of express language releasing a party from its own negligence or negligent acts.

The Sanislos argue that express language regarding negligence is necessary to render an exculpatory clause effective to bar an action for negligence because this Court has held that indemnification agreements, which are similar in nature to an exculpatory clause, require a specific provision protecting the indemnitee for its own negligence in order to be effective. Further, the Sanislos argue that an ordinary and knowledgeable person does not expect a release to relieve a party from liability for failure to provide reasonable care; thus, any document intending [*7] to do so must include specific, unambiguous language to that effect. Give Kids the World, however, argues that use of the term “negligence” should not be required because: (1) the term “liability” is more readily understandable than “negligence” to an ordinary and knowledgeable person; (2) the language of this exculpatory clause would be rendered meaningless if found ineffective; (3) indemnification agreements and exculpatory clauses serve different purposes and involve differing allocations of risks; and (4) this rule has been rejected by many states. 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.

ANALYSIS

The issue presented–the enforceability of a pre-injury exculpatory clause that does not contain express language releasing a party of liability for its own negligence or negligent acts–is a question of law arising from undisputed facts. Thus, [HN1] the standard of review is de [*8] novo. See Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008) (citing D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower courts)).

[HN2] Public policy disfavors exculpatory contracts 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 injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So. 2d at 578); see Levine, 516 So. 2d at 1103 (“The rule is that [HN3] an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So. 2d at 1146 (same). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B (1965). Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Cain, 932 So. 2d at 578 (citing Gayon v. Bally’s Total Fitness Corp., 802 So. 2d 420, 420-21 (Fla. 3d DCA 2001)); Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001); cf. Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507, 509 (Fla. 1973) ( [HN4] “‘A contract of indemnity will not be construed to indemnify [*9] the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms. . . .'”).

The liability release forms signed in this case provided that the Sanislos released Give Kids the World from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . .” and “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. . . .” Further, the form states that the scope of the release includes “damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.” Although this exculpatory clause otherwise clearly and unequivocally includes negligence as its express terms encompass any liability, any and all claims and causes of action, and damages or losses or injuries encountered on the vacation, the issue before this Court is whether an exculpatory clause’s terms “clearly and unequivocally” release a party of liability for its own negligence or negligent acts when the [*10] clause does not contain express language regarding negligence or negligent acts.2

2 The Sanislos do not argue that the exculpatory clause here is void because it is against public policy. This claim is barred. Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (noting that an argument not raised in the initial brief is barred).

As noted above, in Give Kids the World, the Fifth District reaffirmed its position that exculpatory clauses are not ambiguous, equivocal, and unenforceable to bar negligence actions simply because they do not contain express language referring to release of the defendant for negligence or negligent acts. Id. at 761. The First, Second, Third, and Fourth Districts, however, relying on this Court’s holding in University Plaza regarding indemnity agreements, have held that an exculpatory clause is only effective to bar a negligence action if it clearly states that it releases a party from liability for his or her own negligence. Levine, 516 So. 2d at 1103; Van Tuyn, 447 So. 2d at 320; Goyings, 403 So. 2d at 1146 (reasoning that “This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability.”); and Tout, 390 So. 2d at 156 (citing Ivey Plants, 282 So. at 209 (relying on University Plaza to conclude that the language in the indemnification agreement [*11] did not preclude maintenance of an action predicated on the alleged negligence of the defendant)).

Here, both parties argue the merits of extending the holding stated in University Plaza in the context of indemnity agreements to exculpatory clauses and hold-harmless agreements. The Sanislos contend that indemnity agreements and exculpatory clauses achieve the same result–abdication of responsibility for one’s own negligence–and therefore, should be treated the same. Give Kids the World, on the other hand, contends that it is sensible to require specificity in indemnity agreements because both parties to the contract can conceivably cause injury to an unknown third party, whereas exculpatory clauses shift the risk of injury and liability from one contracting party–usually a purveyor of voluntary amusements or a non-profit service provider–to the other contracting party, a voluntary consumer of the amusement or service. To determine whether the holding in University Plaza should be applied in this context, we examine University Plaza and its progeny, and out of state case law.

University Plaza

In University Plaza, University Plaza Shopping Center leased space in its building to a tenant [*12] who used the space to operate a barbershop. During the lease, a gas line exploded underneath the barbershop causing fatal injuries to a barber. The barber’s widow sued University Plaza Shopping Center for wrongful death alleging that the landlord negligently installed and maintained the gas line under the barbershop, which caused the explosion that led to the barber’s fatal injuries. University Plaza Shopping Center then instituted a third-party complaint against the tenant and his insurer seeking to impose liability on them based on an indemnity provision, which provided in pertinent part that the tenant would indemnify and save harmless the landlord from and against any and all claims for damages in and about the demised premises, and against any and all claims for personal injury or loss of life in and about the demised premises. Univ. Plaza, 272 So. 2d at 508-09. University Plaza Shopping Center conceded that the gas line was under, but not part of, the leased premises. Thus, the trial court entered a summary judgment for the tenant finding that an indemnity agreement stated in general terms does not apply to liability resulting from the sole negligence of the indemnitee. Further, the trial court found that the [*13] policy of insurance procured by the tenant was only applicable when the tenant was liable, and the tenant was free from liability for the gas line explosion. On appeal, the First District affirmed. This Court accepted certiorari review based on a decisional conflict because the Third District, in Thomas Awning & Tent Co., Inc. v. Toby’s Twelfth Cafeteria, Inc., 204 So. 2d 756 (Fla. 3d DCA 1967), held that indemnification for “any loss or claims” encompasses the indemnitee’s negligence.

The central issue in University Plaza was whether a contract of indemnity stated in general terms of “any and all claims” indemnifies the indemnitee for damages resulting from his sole negligence. Univ. Plaza, 272 So. 2d at 509. This Court noted that “divergent views” on the particular issue existed throughout the United States, but that the basic premise was that an indemnity contract does not indemnify the indemnitee against losses resulting from the indemnitee’s negligent acts unless such intention is expressed in clear and unequivocal terms. Id. The Court observed that the divergence in views across the country turned on an interpretation of the words “clear and unequivocal” and that three approaches existed: (1) the contract must contain a specific provision providing for indemnification in the event the indemnitee is negligent; [*14] (2) promises to indemnify against “any and all claims” include losses attributed solely to the negligence of the indemnitee because “all” means “all without exception”; and (3) the express use of the terms “negligence” or “negligent acts” is not required if the contractual language and any other factors indicate the intention to clearly and unequivocally indemnify for the indemnitee’s own negligence. Id. at 509-10.

In concluding that [HN5] the best alternative was to require a specific provision protecting the indemnitee from liability solely caused by his own negligence,3 this Court reasoned that its “basic objective in construing the indemnity provision is to give effect to the intent of the parties involved. . .” and that “the use of the general terms ‘indemnify . . . against any and all claims’ does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee.” Id. at 511 (emphasis omitted). The Court further reasoned that in the context presented, “the phraseology logically relates to the tenant’s occupation of the leased premises–not some outside (though proximately close) independent act of negligence of the landlord. . . . It might be likened to a ‘common [*15] stairway’ in an apartment complex. . . . One would not expect liability to extend under a shopowner’s policy for a landlord’s negligently maintained common walkway or mall in front of a series of shops.” Id. at 512 (emphasis omitted). Finally, we concluded our reasoning by stating that the other alternatives listed above impute an intent to indemnify for liability occasioned by the indemnitee’s sole negligence, which is a “harsh result not necessarily contemplated by the parties nor condoned by this Court.” Id. Six years later, we considered whether this rule applied to situations where the indemnitee was jointly liable due to his or her own negligence in Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979).

3 This Court did not follow the United States Supreme Court’s decision in United States v. Seckinger, 397 U.S. 203, 212 n.17, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970), in which the Supreme Court declined to hold that language in indemnification agreements needed to explicitly state that the indemnification extended to injuries caused by the indemnitee’s own negligence, and recognized that contract interpretation is largely an individualized process “with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention.”

Charles Poe Masonry

In Charles Poe Masonry [*16] , an employee of Charles Poe Masonry was injured when he fell from a scaffold on a construction site. The employee filed an action alleging the manufacturer of the scaffold, Spring Lock, was negligent, breached the implied warranty, and was strictly liable for his injuries. The scaffold had been leased by Spring Lock to Charles Poe Masonry. The lease agreement provided in pertinent part that the lessee assumed all responsibility for claims asserted by any person whatsoever growing out of the erection and maintenance, use, or possession of the scaffolding equipment, and that the lessee agreed to hold the lessor harmless from such claims. Id. at 489. Thus, Spring Lock filed a third-party complaint against Charles Poe Masonry for contractual indemnity.4 Id. at 488.

4 Spring Lock also filed the third-party complaint against Charles Poe Masonry for common law indemnity, which this Court held was unavailable for the reasons expressed in Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979).

In considering whether the provision barred a negligence action, we found that the provision at issue was “exactly the sort of ‘general terms’ which we held in University Plaza do not disclose an intention to indemnify for consequences arising from the wrongful acts of the indemnitee” [*17] and that the public policy reasons expressed in University Plaza applied with equal force to instances where the indemnitor and indemnitee were jointly liable. Id. at 489-90 (“Under classical principles of indemnity, courts of law rightfully frown upon the underwriting of wrongful conduct, whether it stands alone or is accompanied by other wrongful acts.”). Further, we reasoned that the language of the provision demonstrated “nothing more than an undertaking by [Charles Poe Masonry] to hold Spring Lock harmless from any vicarious liability which might result from [Charles Poe Masonry’s] erection, maintenance or use of the scaffold.” Id. at 489.

We reaffirmed these principles thirteen years later in Cox Cable Corp. v. Gulf Power Co., 591 So. 2d 627 (Fla. 1992).

Cox Cable

In Cox Cable, Cox Cable Corporation and Gulf Power Company entered into a written contract authorizing Cox Cable to attach its cables, wires, and appliances to Gulf Power’s utility poles. The contract also provided that Cox Cable was to ensure the safe installation and maintenance of any wires, cables, or devices attached to the poles and indemnify Gulf Power against claims for personal injury and property damages. Cox Cable hired a cable installation contractor to perform the installation, and the [*18] cable installation contractor’s employee suffered electrical burns when he overtightened a guy wire during the course of installation. This employee sued Gulf Power alleging that its failure to warn him of the danger was negligent. Gulf Power then filed a third-party complaint against Cox Cable seeking indemnification.5 Id. at 628-29. The indemnity agreement provided in pertinent part that the licensee was to indemnify and save the licensor forever harmless against any and all claims and demands for damages to property and injury or death to any persons including, but not restricted to, employees of the licensee and employees of any contractor or subcontractor performing work for the licensee which may arise out of or be caused by the erection, maintenance, presence, use or removal of the aforementioned attachments. Id. at 629.

5 Gulf Power also claimed breach of contract and alleged that Cox Cable’s negligence was the sole and proximate cause of the employee’s injuries.

On appeal, the district court stated that the degree of specificity required for indemnification in cases of joint negligence was less stringent than in cases where the indemnitee is solely negligent. This Court, however, reaffirmed the principles [*19] established in University Plaza and Charles Poe Masonry in holding that the district court had erred by applying a less stringent standard to cases involving parties who are jointly liable, and that the language of the provision before it was insufficiently clear and unequivocal. Accordingly, it is clear that since 1973 and as recently as 1992, this Court has found that [HN6] an indemnity agreement only indemnifies the indemnitee for his or her own negligence or negligent acts if the agreement contains a specific provision protecting the indemnitee from liability caused by his or her own negligence.

[HN7] The principles underlying our case law regarding indemnity agreements, however, are not applicable to exculpatory clauses. Generally, “[i]ndemnification provides a party entitled to indemnification the right to claim reimbursement for its actual loss, damage, or liability from the responsible party. . . .” First Baptist Church of Cape Coral, Florida, Inc. v. Compass Constr., Inc., 115 So. 3d 978, 986 (Fla. 2013) (Lewis, J., dissenting) (emphasis added) (citing Black’s Law Dictionary 837 (9th ed. 2009)); see also Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999) ( [HN8] “A contract for indemnity is an agreement by which the promisor agrees to protect the promisee against loss or damages by reason of liability to a third party.”). Further, “[i]ndemnification serves the purpose of holding [*20] the indemnified party harmless by shifting the entire loss or damage incurred by the indemnified party–who has without active negligence or fault ‘been obligated to pay, because of some vicarious, constructive, derivative, or technical liability’–to the responsible party who should bear the cost because it was that party’s wrongdoing for which the indemnified party is held liable.” Compass Constr., 115 So. 3d at 986 (Lewis, J., dissenting) (emphasis added); see also Rosati v. Vaillancourt, 848 So. 2d 467, 470 (Fla. 5th DCA 2003) ( [HN9] “Indemnity is a right which inures to one who discharges a duty owed by him but which, as between himself and another, should have been discharged by the other.” (citing Houdaille Indust., Inc. v. Edwards, 374 So. 2d 490, 492-93 (Fla. 1979))). These contracts are typically negotiated at arm’s length between sophisticated business entities and can be viewed as an effort to allocate the risk of liability. Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306, 310, 424 N.Y.S.2d 365 (N.Y. 1979). Thus, it would not be apparent that a party has agreed to indemnify a party for liability incurred due to that party’s own negligent conduct based on general language in an indemnification agreement.

[HN10] An exculpatory clause, on the other hand, shifts the risk of injury and deprives one of the contracting parties of his or her right to recover damages suffered due to the negligent act of the other contracting party. See Ivey Plants, 282 So. 2d at 207. Thus, [*21] although indemnification agreements can sometimes produce the same result as an exculpatory provision by shifting responsibility for the payment of damages back to the injured party, see O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446 (Fla. 5th DCA 1982), Florida courts recognize a distinction between exculpatory clauses and indemnity clauses.6 Acosta v. Rentals (N. Am.), Inc., No. 8:12-CV-01530-EAK-TGW, 2013 U.S. Dist. LEXIS 31392, 2013 WL 869520 (M.D. Fla. Mar. 7, 2013).

6 In Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 792 n.6 (Minn. 2005), the court noted that [HN11] although it had previously recognized similarities between exculpatory clauses and indemnity agreements, the “[i]ndemnification clauses are subject to greater scrutiny because they release negligent parties from liability, but also may shift liability to innocent parties.”

These distinctions are evidenced in this Court’s precedent noted above. In University Plaza and Charles Poe Masonry, this Court recognized that [HN12] indemnification agreements are construed subject to the general rules of contract construction–the Court looks to the intentions of the parties. See Dade Cnty. Sch. Bd., 731 So. 2d at 643 (noting that indemnity contracts are subject to the general rules of contractual construction). Thus, given the typical purpose of indemnification, and that the parties’ apparent intent was to reduce the risk of vicarious liability, we were reluctant to decipher an intent to indemnify a party [*22] for its own wrongdoing through the parties’ use of general terms. See Univ. Plaza, 272 So. 2d at 512 (noting that the language of the agreement appeared to relate to injuries occurring due to the tenant’s occupation of the leased premises–liability would not logically extend to a landlord’s negligently maintained common walkway); Charles Poe Masonry, 374 So. 2d at 489 (noting that the language of the lease agreement appeared to be an undertaking by the indemnitor to indemnify the indemnitee from any vicarious liability). Further, because courts “frown upon the underwriting of wrongful conduct. . .,” specificity is required in the indemnity context. See id. at 489-90 (holding that courts should not allow underwriting of wrongful conduct). In short, because indemnification agreements allocate the risk of liability for injuries to an unknown third party, specificity is required so that the indemnitor is well aware that it is accepting liability for both its negligence and the negligence of the indemnitee. Exculpatory clauses, however, primarily release a party from liability for its own negligence and not vicarious liability.7 See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784-85 (Colo. 1989) (noting, in a release relieving a party from liability for any injuries due to horseback riding, that any claim the injured party could [*23] have asserted would have been based on negligence). Further, releasing a party from liability does not result in the underwriting of wrongful conduct or shift liability to an innocent party. Thus, discerning the intent of the parties regarding the scope of an exculpatory clause involves less uncertainty than in an indemnification context. Accordingly, University Plaza and its progeny do not control our conclusion here.

7 Indeed, the petitioner in this case could not indicate what this liability release form covered if not the negligence of Give Kids the World.

Review of out-of-state precedent illustrates that many states have expressly rejected the requirement that an exculpatory clause contain an explicit provision releasing a party from liability for his or her own negligence or negligent acts.

Out-of-State Precedent

State courts across the country have rendered four different standards for determining whether language in an exculpatory clause clearly and unequivocally releases a party from liability for negligence. 57A Am. Jur. 2d Negligence § 53 (2004). First, recognizing that “the intentions of the parties with regard to an exculpatory provision in a contract should be delineated with the greatest of particularity,” [*24] an exculpatory clause will be given effect if the agreement clearly and unambiguously expresses the parties’ intention to release a party from liability for his or her own negligence by using the words “negligence” or “negligent acts” and specifically including injuries definitely described as to time and place. 57A Am. Jur. 2d Negligence § 53 (citing Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 663 A.2d 1340 (N.H. 1995)). Second, a specific reference to negligence is not required if the clause clearly and specifically indicates an intent to release the defendant from liability for a personal injury caused by the defendant’s negligence. See 57A Am. Jur. 2d Negligence § 53 (citing Seigneur v. Nat’l Fitness Inst., Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000); Swartzentruber v. Wee-K Corp., 117 Ohio App. 3d 420, 690 N.E.2d 941 (Ohio Ct. App. 1997); Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973); Russ v. Woodside Homes, Inc., 905 P.2d 901 (Utah Ct. App. 1995); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (Wash. Ct. App. 1981)). Third, a specific reference to negligence is not required if protection against negligence is the only reasonable construction of the contract. See, e.g., American Druggists’ Ins. Co. v. Equifax, Inc., 505 F. Supp. 66, 68-69 (S.D. Ohio 1980) (applying Ohio law). Fourth, a specific reference to negligence is not required if the hazard experienced was clearly within the contemplation of the provision. See, e.g., Blide, 636 P.2d 493). Courts, however, have required words conveying a similar import; a release will not cover negligence if it neither specifically refers to negligence nor contains any other language that could relate to negligence. See 57A Am. Jur. 2d Negligence § 53 (citing Lewis v. Snow Creek, Inc., 6 S.W.3d 388 (Mo. Ct. App. 1999) (retransferred to Mo. Ct. of Appeals (Dec. 21, 1999) and opinion adopted [*25] and reinstated after retransfer (Jan. 6, 2000)); Sivaslian v. Rawlins, 88 A.D.2d 703, 451 N.Y.S.2d 307 (N.Y. App. Div. 1982); Colton v. New York Hospital, 98 Misc. 2d 957, 414 N.Y.S.2d 866 (N.Y. Sup. Ct. 1979)). According to American Jurisprudence, however, “the better practice is to expressly state the word ‘negligence’ somewhere in the exculpatory provision.”8 57A Am. Jur. 2d Negligence § 53; see Give Kids the World, 98 So. 3d at 763 (Cohen, J., concurring specially) (“The better view is to require an explicit provision to that effect. . . . I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care.”).

8 Although many courts have noted that it may be “better practice” to include the term “negligence” in contracts, our jurisprudence recognizes that the term “negligence” may not be understood by the average ordinary and knowledgeable person. For instance, the legal term “negligence” is defined for juries. See Fla. Std. Jury Instr. (Civ.) 401.4. Thus, the inclusion of the terms “negligence” or “negligent acts” may not clarify the meaning of an exculpatory contract for the average ordinary and knowledgeable person at all.

Although some courts have suggested that “the better practice” for contracting parties is to require an explicit provision releasing a party from liability for his or her own negligence or negligent acts, most [*26] states have expressly rejected such a requirement. For instance, the Supreme Court of Kentucky does not require the word “negligence,” but reviews the contractual language to determine whether it satisfies any one of four standards articulated by the court. Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005) (“. . . a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word ‘negligence’; or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision.”); see Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644, 649-50 (Ky. 2007) (finding that the wording of the release was “unmistakable” and that “‘the hazard experienced was clearly within the contemplation of the provision.'”).

The Colorado Supreme Court has “examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. . .” and has “also made clear that the specific terms ‘negligence’ and ‘breach of [*27] warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (citing Heil Valley Ranch, 784 P.2d at 785). Indeed, in Heil, the Colorado Supreme Court noted several factors supporting the enforceability of the exculpatory clause: (1) the agreement was written in terms free from legal jargon; (2) the clause was not inordinately long or complicated; (3) when the agreement was read to the injured party at a deposition she indicated that she understood it; (4) the release specifically addressed a risk that adequately described the circumstances of the injury; and (5) it was difficult to imagine any claims that the injured party could have asserted other than negligence. 784 P.2d at 785. However, in Wycoff v. Grace Community Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010), the court of appeals noted that in every Colorado Supreme Court case upholding an exculpatory clause, the clause “contained some reference to waiving personal injury claims based on the activity being engaged in.” Thus, a release form that did not reference the relevant activity or that personal injury claims were specifically waived was unenforceable.

Other states have similarly held that reference to negligence is not required. The Supreme Court of Hawai’i [*28] has held that an exculpatory clause that did not include specific language pertaining to negligence was effective to bar simple negligence claims, but not gross negligence or willful misconduct. See Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 141 P.3d 427, 439-40 (Haw. 2006). In Massachusetts, an exculpatory clause releasing a party from liability for “any and all liability, loss, damage, costs, claims and/or causes of action, including but not limited to all bodily injuries” occurring during a motorcycle safety course was deemed “unambiguous and comprehensive” despite the absence of language specifically mentioning negligence. Cormier v. Cent. Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 620 N.E.2d 784, 785 (Mass. 1993).

The following states also hold that the word “negligence” is not required. See, e.g., Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298, 304 (Md. 1996) (“To be sure, as the weight of authority makes clear . . . the exculpatory clause need not contain or use the word ‘negligence’ or any other ‘magic words.'”); Cudnik v. William Beaumont Hosp., 207 Mich. App. 378, 525 N.W.2d 891, 894 n.3 (Mich. App. 1994) (holding exculpatory agreement executed by patient before receiving radiation therapy was void as against public policy, but noting that exculpatory clause was not void for ambiguity because it “quite clearly attempts to absolve defendant of all liability ‘of every kind and character’ arising out of the radiation therapy” despite no reference to negligence); Mayfair Fabrics v. Henley, 48 N.J. 483, 226 A.2d 602, 605 (N.J. 1967) (“But there are no required words [*29] of art and, whatever be the language used or the rule of construction applied, the true goal is still the ascertainment and effectuation of the intent of the parties.”); Reed v. Univ. of N.D., 1999 ND 25, 589 N.W.2d 880, 885-86 (N.D. 1999); Estey v. MacKenzie Eng’g Inc., 324 Ore. 372, 927 P.2d 86, 89 (Or. 1996) (noting that the Supreme Court of Oregon had previously upheld clauses releasing others from liability “‘from whatever cause arising,'” and “‘all liability, cost and expense,'” and declining “to hold that the word ‘negligence’ must expressly appear in order for an exculpatory or limitation of liability clause to be effective against a negligence claim”); Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188, 190 (Tenn. 1973); Russ v. Woodside Homes, Inc., 905 P.2d 901, 906 (Utah Ct. App. 1995); Fairchild Square Co. v. Green Mountain Bagel Bakery, Inc., 163 Vt. 433, 658 A.2d 31, 34 (Vt. 1995); Scott ex rel. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 9-10 (Wash. 1992) (en banc) (rejecting proposed requirement of “the word ‘negligence’ or language with similar import” and holding “[c]ourts should use common sense in interpreting purported releases, and the language ‘hold harmless . . . from all claims’ logically includes negligent conduct”); Murphy v. N. Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504, 511 (W. Va. 1991); Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334, 341 (Wis. 2005) (noting that “this court has never specifically required exculpatory clauses to include the word ‘negligence,'” but has recognized that its inclusion would be “very helpful”); Schutkowski v. Carey, 725 P.2d 1057, 1061 (Wyo. 1986) (adopting a “common sense” approach “based on the clear intent of the parties rather than specific ‘negligence’ terminology” for interpreting exculpatory clauses); Sanchez v. Bally’s Total Fitness Corp., 68 Cal. App. 4th 62, 79 Cal. Rptr. 2d 902, 904 (Cal. Ct. App. 1998)9 (noting that courts look to the intent of the parties [*30] and use of the term “negligence” is not dispositive); Neighborhood Assistance Corp. v. Dixon, 265 Ga. App. 255, 593 S.E.2d 717 (Ga. Ct. App. 2004); Finagin v. Ark. Dev. Fin. Auth., 355 Ark. 440, 139 S.W.3d 797 (Ark. 2003) (noting that courts are not restricted to the literal language of the contract and will consider the facts and circumstances surrounding the execution of the release to determine the intent of the parties).10

9 In Benedek v. PLC Santa Monica, LLC, 104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197 (Cal. Ct. App. 2002), the injured party did not contend that the release is ineffective due to the ambiguity of the language. Thus, Division Five of the Second Appellate District did not address this issue. However, California law appears to provide that a release need not achieve perfection, but “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.”

10 It is also evident that federal courts in circuits finding complete limitations on liability enforceable in maritime contracts hold that express reference to the terms “negligence” or “negligent acts” is not required. See Cook v. Crazy Boat of Key West, Inc., 949 So. 2d 1202 (Fla. 3d DCA 2007) (“State laws requiring specific reference to the releasee’s negligence therefore conflict with federal law and may not be applied in cases involving federal maritime law.”).

Other jurisdictions, however, require express use of the terms “negligence” or “negligent acts.” See Sweeney v. City of Bettendorf, 762 N.W.2d 873, 878-79 (Iowa 2009) (requiring specific reference to exculpee’s own negligence); McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 242, 612 S.E.2d 462 (S.C. Ct. App. 2005); [*31] Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998); Morganteen v. Cowboy Adventures, Inc., 190 Ariz. 463, 949 P.2d 552 (Ariz. Ct. App. 1997); Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337-38 (Mo. 1996) (holding that express language is required because “[o]ur traditional notions of justice are so fault-based that most people might not expect such a relationship to be altered, regardless of the length of an exculpatory clause, unless done so explicitly”); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508-09 (Tex. 1993) (applying an “express negligence doctrine” because “indemnity agreements, releases, exculpatory agreements, or waivers, all operate to transfer risk” and such agreements are “an extraordinary shifting of risk”); Macek v. Schooner’s Inc., 224 Ill. App. 3d 103, 586 N.E.2d 442, 166 Ill. Dec. 484 (Ill. App. Ct. 1991); Kissick v. Schmierer, 816 P.2d 188, 190-91 (Alaska 1991).11 The Supreme Court of Connecticut held that express language was required explaining that

A person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing. A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost.

Hyson v. White Water Mountain Resorts of Conn., Inc., 265 Conn. 636, 829 A.2d 827, 831 (Conn. 2003). In New York, the Court of Appeals of New York held that in order for a party to shed [*32] its ordinary responsibility of due care, express use of the terms “negligence,” “negligent acts,” or words conveying a similar import are required because although parties may be alerted to dangers inherent in dangerous activities, “it does not follow that [parties are] aware of, much less intended to accept, any enhanced exposure to injury occasioned by the carelessness of the very persons on which [the parties] depend[] for [his or her] safety. . . . Thus, whether on a running reading or a careful analysis, the agreement could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Gross, 400 N.E.2d at 309-11.

11 In Alaska, however, indemnification agreements do not require specific words regarding indemnity for the indemnitee’s own negligence. Kissick, 816 P.2d at 192 (Compton, J., dissenting) (citing Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976)).

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 [*33] is more persuasive, particularly in the context presented here. As discussed above, the courts’ basic objective in interpreting a contract is to give effect to the parties’ intent. Further, as the United States Supreme Court has observed, [HN13] contract interpretation is largely an individualized process “with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention.” United States v. Seckinger, 397 U.S. 203, 212 n.17, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970). 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.12 The contract at issue demonstrates as much.

12 In a concurring opinion in Florida Department of Financial Services v. Freeman, Justice Cantero referred to several Florida Supreme Court cases discussing the freedom of contract and noted that this Court had previously recognized that [HN14] “‘while there is no such [*34] thing as an absolute freedom of contract, nevertheless, freedom is the general rule and restraint is the exception.'” 921 So. 2d 598, 607 (Cantero, J., concurring) (quoting Larson v. Lesser, 106 So. 2d 188, 191 (Fla. 1958)). Further, Justice Cantero noted that “[t]his freedom . . . ‘includes freedom to make a bad bargain.'” Id. at 607 (quoting Posner v. Posner, 257 So. 2d 530, 535 (Fla. 1972)). Finally, Justice Cantero acknowledged that courts may not “‘rewrite contracts or interfere with freedom of contracts or substitute [their] judgment for that of the parties to the contract in order to relieve one of the parties from apparent hardships of an improvident bargain.'” Id. at 607 (quoting Quinerly v. Dundee Corp., 159 Fla. 219, 31 So. 2d 533, 534 (Fla. 1947)).

The wish request form and liability release form signed by the Sanislos released Give Kids the World and all of its agents, officers, directors, servants, and employees from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish. . . .” The language of the agreement then provided that the scope of the agreement included “damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind. . . .” This agreement clearly conveys that Give Kids the World would be released [*35] from any liability, including negligence, for damages, losses, or injuries due to transportation, food, lodging, entertainment, and photographs. With regard to Give Kids the World and the wish fulfilled for the Sanislos, it is unclear what this agreement would cover if not the negligence of Give Kids the World and its agents, officers, directors, servants, and employees, given that exculpatory clauses are unenforceable to release a party of liability for an intentional tort. See Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008) (citing Kellums v. Freight Sales Ctrs., Inc., 467 So. 2d 816 (Fla. 5th DCA 1985), and L. Luria & Son, Inc. v. Honeywell, Inc., 460 So. 2d 521 (Fla. 4th DCA 1984)). Further, this agreement specifically operates to release Give Kids the World in connection with circumstances that are not inherently dangerous. Thus, this is not a situation where a person of ordinary intelligence would believe that the release “could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Cf. Gross, 400 N.E.2d at 309-10; Hyson, 829 A.2d at 831 (requiring the use of the word “negligence” in a release pertaining to snowtubing). Accordingly, this agreement would be rendered meaningless if it is deemed ineffective to bar a negligence action solely on the basis of the absence of [*36] the legal terms of art “negligence” or “negligent acts” from the otherwise clear and unequivocal language in the agreement.

Despite our conclusion, however, we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions. As noted previously, [HN15] exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); see Levine, 516 So. 2d at 1103 (“The rule is that an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So. 2d at 1146 (same). Further, exculpatory clauses are only unambiguous and enforceable where the language unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away. Cain, 932 So. 2d at 578 (citing Gayon, 802 So. 2d at 420); Raveson, 793 So. 2d at 1173; cf. Univ. Plaza, 272 So. 2d at 509 (“‘A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms.'”). Moreover, as we stated in University Plaza, this [*37] Court’s “basic objective . . . is to give effect to the intent of the parties. . . .” Id. at 511 (emphasis deleted). Accordingly, our decision is merely a rejection of the Sanislos’ invitation to extend University Plaza, which applies to indemnity agreements, to exculpatory clauses.

CONCLUSION

For the foregoing reasons, we conclude that [HN16] the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not render the agreement per se ineffective to bar a negligence action. Accordingly, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980).

It is so ordered.

LABARGA, C.J., and PERRY, J., concur.

CANADY and POLSTON, JJ., concur in result.

LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.

DISSENT BY: LEWIS

DISSENT

LEWIS, J., dissenting.

Today the majority leaves our most vulnerable citizens open to catastrophe from those who seek to shield themselves from their own fault. Florida precedent mandates that because the advance liability release and hold harmless agreement signed by the Sanislos did not explicitly and unambiguously warn that Give Kids the World [*38] would be released and held harmless for its own failure to exercise reasonable care as previously outlined and required under Florida law, no such waiver was made. I disagree with the decision of the majority that such explicit warning is required only for valid indemnity agreements, but not for combined releases, indemnification, and hold harmless agreements, such as the document in this case.

In University Plaza Shopping Center v. Stewart, 272 So. 2d 507, 509 (Fla. 1973), the Court considered whether an indemnity agreement in which one party agreed to indemnify another for “any and all claims” included those that arose solely out of the negligence of the indemnitee. The Court concluded that indemnification agreements will be effective against the negligence of the indemnitee only if that intention is expressed in clear and unequivocal terms. Id. The Court then held that an agreement to indemnify against “any and all claims” does not clearly and unequivocally express the intent to include claims that result exclusively from the negligence of the indemnitee. Id. at 511. The majority provides no logical basis to ignore that well established principle.

As the majority recognizes but fails to apply, exculpatory clauses that protect a party from his or her own negligence [*39] are disfavored. See Slip Op. at 7, 32; see also Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979). Based on this policy, the Court in Charles Poe Masonry extended the holding of University Plaza to apply even where the indemnified party is jointly liable with the indemnitor. See id. at 489-90 (“Under classical principles of indemnity, courts of law rightfully frown upon the underwriting of wrongful conduct, whether it stands alone or is accompanied by other wrongful acts.”). Additionally, courts strictly construe exculpatory clauses against the party that seeks to be relieved of liability. See Cain v. Banka, 932 So. 2d 575, 580 (Fla. 5th DCA 2006); see also Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920, 922 (Fla. 3d DCA 1998). Courts have consistently required that explicit language be used in agreements that attempt to contract away liability for one’s own negligence, and the language must be sufficiently clear and understandable such that an ordinary and knowledgeable person will comprehend the rights that he or she relinquishes. Gillette v. All Pro Sports, LLC, 135 So. 3d 369, 370 (Fla. 5th DCA 2014). The language here has previously been held to be insufficient. The public policy that disfavors exculpatory clauses should apply with equal force to all contracts that operate to remove a party’s obligation to act with reasonable care.

Moreover, a hold harmless agreement is simply another term for an indemnification agreement. See 42 [*40] C.J.S. Indemnity § 23 (2014) (“The term ‘hold harmless’ means to fully compensate the indemnitee for all loss or expense, and an agreement to hold harmless is a contract of indemnity that requires the indemnitor to prevent loss to the indemnitee or to reimburse the indemnitee for all losses suffered from the designated peril.”) (footnotes omitted); see also Black’s Law Dictionary 887 (10th ed. 2014) (stating that “indemnity clause” may also be termed “hold-harmless clause”). Accordingly, because the Court has previously held that indemnification agreements are ineffective against the negligence of the party being indemnified unless they clearly and explicitly state this intent in language that can be understood by an ordinary and knowledgeable person, agreements to release and hold harmless without such language should be deemed similarly ineffective.

The rational basis for this principle of law is that a general release and hold harmless agreement may not sufficiently warn the untrained signing party that the other party will not be responsible for its own negligent acts. The signing party may instead understand the contract as an agreement that exempts the other party from any injury [*41] that occurs as a result of a third party. For example, in this case, the Sanislos signed a contract that was both a release and a hold harmless agreement, and a number of other entities were involved in carrying out the wish that Give Kids the World granted, including food vendors and transportation providers. The Sanislos could have understood that Give Kids the World would not be liable for the negligence of these other entities, and may not have understood that Give Kids the Worlds would not be liable for its own negligence. As established under Florida law, a specific provision that explicitly states that a party will be released and held harmless for liability for its own negligence would clarify the nature of the release so that individuals would have full knowledge of what risks they undertake by signing such a contract. There simply is no rational or logical legal reasoning that would require one to explicitly state a party will be indemnified for its own negligence as a condition of validity as is the current law, but not required to do so if that agreement also includes a release!

For these reasons, I dissent.

PARIENTE and QUINCE, JJ., concur.


The FlowRider looks fun because it has a lot of people trying it, falling and suing

Ignoring the risks that are presented by the defendant are not a way to prove your claim.

Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092

State: Florida, United States District Court for the Southern District of Florida

Plaintiff: Mary Magazine

Defendant: Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International

Plaintiff Claims: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm

Defendant Defenses: release

Holding:

Year: 2014

The FlowRide is a surfing simulator. It consists of a sloped surface with water shooting up to the top. The water flowing up is similar to a wave and used to learn to ride a wave or just have fun. You can find Flowriders in stores along the ocean and in this case on a cruise ship.

The plaintiff was a 59 year old attorney that signed up for the cruise. The cruise is a “Card Player Cruise.” These cruises are pushed to poker players. The plaintiff signed up for the cruise two weeks in advance and registered to participate in several activities: ice skating, rock climbing, zip lining and the FlowRider. In doing so she signed an electronic release.

The defendant argued the plaintiff was warned of the risks. There was a “Caution” sign was located in the FlowRider viewing area. There was also a five-minute video that played on television channels on the cruise. There was a list of warnings on the bulletin board.

The plaintiff watched another person on the FlowRider and watched that person fall. The plaintiff’s turn came on the FlowRider. She alternated with other riders and fell 10- to 12 times before falling and breaking her leg. The FlowRider lessons were videotaped including the plaintiff’s fall which broke her leg.

Summary of the case

The court refers to the plaintiff by her last name, Magazine and to the defendant Royal Caribbean Cruises as RCL.

Because the accident occurred on a ship, the standard of care is different. “…a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.”

The judge first throughout the negligent design claims. To be liable for negligent design a “defendant must have played some role in the design.” Because the defendant did not design the FlowRider that claim was thrown out. Also, the negligent maintenance claim was also thrown out.

A shipowner does have a duty to warn passengers of dangers which the shipowner knows or should know about “and which may not be apparent to a reasonable passenger”.

The duty to warn does not extend to dangers that are “open and obvious.” “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger.

Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.

The plaintiff argued that she did not see any of these warnings. However, the plaintiff also stated that even if she had seen the warnings “…she would not have heeded warnings anyway.” The court also stated that the risk of falling was an open and obvious risk in this case.

The court also looked at the requirements the plaintiff had to meet to prove her case. “Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.”

Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) that actually caused the plaintiff’s injury.

The plaintiff argued that it was not falling that caused her injury, but the specific way she fell, which was not identified as a risk of the activity. However, the court did not agree with the argument.

First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.

Second, the general risk of injury on the FlowRide is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway.

The court then stated, “Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious.”

The court then looked at the various other arguments of the plaintiff stating that the surface was not as the plaintiff had imagined that the medical issues suffered by the plaintiff were not related to the warnings and the FlowRider, and the Defendant had a duty to inform riders of other injuries participants had received. The court found all of these arguments of the plaintiff all failed because the risks were open and obvious.

Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference.

The court then reviewed the negligent instruction claim of the plaintiff. The plaintiff argued that how she was instructed, and the methods used to teach here lead to her injury.

While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.

The court found that the plaintiff may have a claim based on negligent instruction.

The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions.

The court then found that:

to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury.

However, the court found the plaintiff’s arguments to be thin and thought she would have a hard time proving those elements at trial.

So Now What?

If you have warning signs, videos, or information of the risks of your activity and are using a release, put in the release that by signing the release the signor states they have seen the warnings and videos and reviewed the website.

During registration for your activity, tell people to read the warnings, watch the videos and read all warning signs.

If you are using methods to teach or use a device that are not suggested by the manufacture or are different from the standard of care for the activity, this case suggests you should inform people of those differences.

What do you think? Leave a comment.

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

#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, Royal Caribbean Cruises, LTD., Royal Caribbean International, FlowRider, Cruise, Surfing, Release, Electronic Release,

 


Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092

Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092

Mary Magazine, Plaintiff, v. Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International, Defendant.

CASE NO. 12-23431-CIV-SEITZ/SIMONTON

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2014 U.S. Dist. LEXIS 41092

March 27, 2014, Decided

March 27, 2014, Filed

CORE TERMS: instructor, rope, warning, balancing, summary judgment, negligently, warn, lesson, duty to warn, passenger, falling, video, reasonable care, proximately, proximate, cruise, notice, ride, risk of injury, breached, surface, dangerous condition, serious bodily injury, unreasonably, contributed, failure to warn, nonmoving, aboard, warned, ship

COUNSEL: [*1] For MARY MAGAZINE, Plaintiff: Kate S. Goodsell, LEAD ATTORNEY, Michael Charles Black, Cassidy & Black, P.A., Miami, FL.

For Royal Caribbean Cruises, Ltd., doing business as Royal Caribbean International, Defendant: Bryan Edward Probst, LEAD ATTORNEY, Royal Caribbean Cruises, Ltd., Miami, FL; Curtis Jay Mase, LEAD ATTORNEY, Mase, Lara, Eversole PA, Miami, FL; Jennifer Nicole Hernandez, Mase Lara Eversole, P.A., Miami, FL; Lauren E DeFabio, Mase Lara Eversole, Miami, FL.

JUDGES: PATRICIA A. SEITZ, UNITED STATES DISTRICT JUDGE.

OPINION BY: PATRICIA A. SEITZ

OPINION

ORDER ON SUMMARY JUDGMENT

THIS MATTER is before the Court on Defendant’s Motion for Final Summary Judgment [DE-41]. This action arises from a broken leg suffered during a private lesson on the FlowRider, a surfing simulator aboard one of Defendant Royal Caribbean Cruises, Ltd. (“RCL”)’s cruise ships. The essence of Plaintiff Mary Magazine’s single-count complaint is that RCL failed to follow its own procedures and thus negligently increased the risk of Magazine’s injury, principally by failing to warn her of the risk of injury on the FlowRider and by negligently instructing her in its use.

Having considered the motion, the response [DE-48] and reply [DE-52] [*2] thereto, the oral argument of counsel on March 20, 2014, and all of the evidence in the light most favorable to the Plaintiff, the Court will grant the motion as to the allegations that RCL caused an unreasonably dangerous condition under the circumstances, negligently designed and maintained the FlowRider, and negligently failed to warn of the risk of injury therefrom. It will deny the motion as to the allegation that RCL negligently instructed Magazine in the use of the FlowRider, as the Parties’ papers have not addressed Magazine’s counsel’s argument at the March 20, 2014 hearing that the instructors’ hand-off of the balancing rope contributed to the risk of Magazine’s injury.

I. Factual Background

On September 18, 2011, Plaintiff Mary Magazine, a 59-year-old attorney and Miami, Florida resident, departed on a Card Player Cruise aboard the Allure of the Seas, one of RCL’s cruise ships. The FlowRider is a surfing simulator, installed on the Allure of the Seas and other RCL vessels, that uses powerful jets of water to create a continuous, artificial wave on which participants try to surf or ride using either a bodyboard or a surfboard (or “flowboard”). Unlike ocean waves, the FlowRider’s [*3] artificial wave consists of only 1 – 3 inches of water above a “stationary, tensioned vinyl matted fabric surface” above a “rigid or fiberglass or PVC subsurface.” (“Express Assumption of Risk – Waiver & Release of Liability – FlowRider Onboard Activity Waiver – General Terms & Conditions” [DE-41-3] (“FlowRider Waiver”) at 2.)

Almost 2 weeks earlier, on September 6, 2011, Magazine had electronically registered to participate in various activities on the cruise, including ice skating, rock climbing, zip lining, and the FlowRider. As part of the registration process, Magazine checked boxes for each activity and electronically signed the FlowRider Waiver.1 She knew at the time that checking boxes meant “signing something,” which may have included warnings, but does not recall seeing any of the content of the FlowRider Waiver. She did not take additional steps at the time to research any of the activities. Once aboard the ship, she signed up for a FlowRider lesson. Because she was taking a lesson, and because she had previously participated in numerous sports without injury, she did not expect to be injured on the FlowRider. (FlowRider Waiver; Dep. of Mary Magazine [DE-41-2] (“Magazine [*4] Dep.”) 44:1 – 53:4, 69:17 – 22, 122:15 – 123:1.)

1 The parties agree that the FlowRider Waiver is unenforceable under Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846 (11th Cir. 2011).

RCL contends that it warns its passengers of the risks associated with the use of the FlowRider in several ways, all of which Magazine testifies she did not see before her accident. These include the FlowRider Waiver, a “Caution” sign in a viewing area near the FlowRider entrance, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.

On September 20, 2011, Magazine and two other passengers participated in a private FlowRider lesson, which cost $60 per person. One of the instructors asked Magazine about the knee brace she was wearing, and she responded that she’d had a knee replacement and used a brace “just for stability purposes.” Neither instructor said anything further about her knee. (Magazine Dep. 76:17 – 78:6.) There is no evidence that any instructor at this time warned Magazine of any risks associated with the FlowRider or inquired as to her understanding of those risks.

During the lesson, Magazine received [*5] verbal instructions from two RCL FlowRider instructors, though she does not remember the instructions in detail. She first watched another member of her group practice balancing on the board while receiving instruction, lose his balance, fall to the back of the FlowRider, and return to wait in line to ride again. Then, on Magazine’s turn, an instructor initially held her hand while she practiced standing on and maneuvering the flowboard. She was barefoot at this time and throughout the lesson. The instructor then let go of her hand, and Magazine tried to maintain her balance on her own until she fell and was carried by the water to the back of the FlowRider. She returned to wait in line to ride again, ultimately falling and returning to practice riding the FlowRider a total of approximately 10 to 12 times. (See Magazine Dep. 78:10 – 81:3; Dep. of 30(b)(6) representative of RCL, Alison Frazier [DE-42-1] (“RCL Dep.”) 68:3 – 69:8; Pl.’s Notice of Serving Answers to Interrog. [DE-41-1] (“Pl. Interrog.”) ¶ 8.)

After several rides, once the instructor seemed to think Magazine could balance without assistance, the instructors started using a balancing rope. One instructor would give her a [*6] rope, held by a second instructor standing near the front of the FlowRider, to hold with her right hand, while the first instructor held her left hand. Eventually the first instructor would let go of Magazine’s left hand, and the second instructor would guide her with the rope towards the front and middle of the FlowRider, where the water flow was stronger than it had been further back and on the side. It is unclear how many times Magazine practiced with the balancing rope in this way before her injury. (See Magazine Dep. 108:16 – 109:12; Pl. Interrog. ¶ 8.)

During Magazine’s last ride, she was holding the rope while the second instructor guided her to the front and middle of the FlowRider as described above. The video of her accident 2 shows that the second instructor, who had initially been holding the rope, handed the rope to the first instructor. Soon thereafter, Magazine lost her balance and fell backwards into the water. Her legs separated and she lost control of the flowboard. Her fall resulted in a spiral fracture in her femur and ultimately in permanent nerve damage, numbness, tingling, and a pronounced limp. (See Magazine Dep. 112:7 – 119:8; Pl. Interrog. ¶¶ 8, 10; Dep. of [*7] Kevin Breen [DE-44-1] (“Breen Dep.”) 80:8 – 81:23; Def’s Mot. for Final Summ. J. [DE-41] (“SJ Mot.”) at 7 ¶ 27; Pl.’s Resp. in Opp’n to Def.’s Mot. for Final Summ. J. [DE-48] (“Response”) at 8 ¶ 27.)

2 The video of Magazine’s accident was not part of the summary judgment record, but the testimony in the record refers frequently to this video. (See, e.g., Magazine Dep. 23:17 – 19.) Thus, the Court asked the Parties to provide it to the Court at the March 20, 2014 hearing.

II. Legal Standard

General maritime law controls the present action, as it involves an alleged tort committed aboard a ship in navigable waters. Therefore, the elements of negligence are: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)). In the maritime context, “a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Id. (quoting [*8] Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)).

“Summary judgment is appropriate only when, after viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party, the court nonetheless concludes that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party carries the initial burden of production, which can be met by showing that the nonmoving plaintiff has failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007) (citations omitted).

Once the moving party’s burden is met, the nonmoving party, having had the opportunity to conduct full discovery, must demonstrate that there is factual support for each element necessary to establish each claim it wishes to pursue at trial. If the nonmoving party cannot do so, then summary judgment is proper because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other [*9] facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

III. Analysis

Magazine alleges that RCL breached its duty of care in five ways: (1) by causing an “unreasonably dangerous condition” on the FlowRider; (2) by negligently maintaining and (3) negligently designing the FlowRider; (4) by failing to warn her of the risk of injury; and (5) by negligently supervising and instructing 3 her in its use.

3 Although the Complaint alleges that RCL “negligently supervised” Magazine, the Parties now characterize this claim as “negligent supervision and instruction.” (SJ Mot. at 16; Response at 25.) There is no evidence that RCL inadequately supervised or trained its instructors; rather, Magazine argues that RCL’s instructors were negligent towards her during her FlowRider lesson. As such, the claim is more accurately described as negligent instruction.

As to the claims of negligent design and negligent maintenance, Magazine’s counsel conceded at the March 20, 2014 hearing that RCL did not design the FlowRider and that there is no evidence of negligent maintenance. (See also SJ Mot. at 9 ¶¶ 34 – 37; Response at 10 ¶¶ 34 – 37.) To be liable for negligent design, a defendant must have [*10] played some role in the design. See Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (2010) (affirming summary judgment for defendant where there was no evidence that defendant had actually designed the relevant area). Therefore, summary judgment is proper as to the claims of negligent design and negligent maintenance.

Magazine’s counsel also argued at the hearing that RCL’s “caus[ing] an unreasonably dangerous condition” was an independent theory of negligence. However, there is no evidence in the record supporting the existence of any such “unreasonably dangerous condition” that is distinct from the allegations of RCL’s failure to warn, negligent design, negligent maintenance, and negligent instruction. Therefore, summary judgment is proper as to a separate claim that RCL caused an unreasonably dangerous condition under the circumstances.

The Court now turns to the remaining theories of negligence: that RCL failed to warn Magazine of the FlowRider’s risks and negligently instructed her in its use.

A. RCL’s Duty to Warn

A shipowner’s duty of reasonable care includes a duty to warn passengers of dangers of which the shipowner knows or should know but which may not be apparent to [*11] a reasonable passenger. Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013). The duty to warn does not extend to dangers that are “open and obvious.” Id. “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger. Individual subjective perceptions of the injured party are irrelevant in the determination of whether a duty to warn existed.” John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F. Supp. 2d 1345, 1351 (S.D. Fla. 2008) (citations omitted).4

4 See also Restatement (Third) of Torts: Phys. & Emot. Harm § 18, cmt. f (2010):

[T]here generally is no obligation to warn of a hazard that should be appreciated by persons whose intelligence and experience are within the normal range. When the risk involved in the defendant’s conduct is encountered by many persons, it may be foreseeable that some fraction of them will be lacking the intelligence or the experience needed to appreciate the risk. But to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important [*12] function.

RCL maintains that it reasonably warned Magazine multiple times of the risks posed by the FlowRider. (SJ Mot. at 11 – 14.) RCL points to the FlowRider waiver, a “Caution” sign, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.

“Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.” Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir. 1979), modified on other grounds, 612 F.2d 905 (5th Cir. 1980). At summary judgment, the Court must accept Magazine’s testimony that she did not see any of these warnings.

Instead, as detailed below, the dispositive issues are (1) proximate causation and (2) the lack of duty to warn of open and obvious dangers. RCL has two arguments about these issues. First, any alleged failure to warn was not the proximate cause of Magazine’s injury because she “testified that she would not have heeded warnings anyway.” (SJ Mot. at 14.) Second, “the risk of falling and suffering an injury on the FlowRider is surely open and obvious under [*13] the facts of this case.” (Id. at 15 – 16.)

1. Applicable Law

In any negligence claim, the plaintiff must show that the defendant’s breach of duty actually and proximately caused the plaintiff’s injury. Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1566 (11th Cir. 1985) (“[F]ault in the abstract is not sufficient. To produce liability, the acts of negligence . . . must be a contributory and proximate cause of the accident.”). This requires that the defendant’s breach “be a substantial factor in bringing about the harm.” Chavez v. Noble Drilling Corp., 567 F.2d 287, 289 (5th Cir. 1978). Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.

In addition, as noted above, a defendant has no duty to warn a plaintiff about dangers that are open and obvious.5 Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) [*14] that actually caused the plaintiff’s injury. See, e.g., Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (plaintiffs had adequately stated claim that cruise line breached its duty to warn plaintiffs about the high prevalence of gang-related violence in Coki Beach that caused one plaintiff’s death). As neither party identifies the relevant risk with adequate specificity in their written or oral arguments, the Court must glean the types of potentially relevant risks from the Parties’ papers and the record. For the reasons stated below, the Court finds no evidentiary support for a reasonable jury to conclude that any risk exists in this case that meets all four criteria essential to a negligent-failure-to-warn claim.

5 The lack of a duty to warn of open and obvious dangers is related to the requirement of proximate causation because “warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety,” particularly as such warnings “may be ignored by users and consumers and can diminish the significance of warnings about non-obvious, not-generally-known risks.” Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317, 1323 (M.D. Fla. 2003) [*15] (citation omitted).

2. Identifying the Relevant Risk

a. Risk of Falling on the FlowRider

The relevant risk is not simply that one might fall on the FlowRider, as RCL appears to argue at times. (See, e.g., SJ Mot. at 16 (“Plaintiff’s expert and Carnival’s [sic] expert both agreed that falling on the FlowRider is an obvious risk.”).) A reasonable jury could conclude that a first-time participant is virtually guaranteed to fall on the FlowRider.6 However, a fall that results in a spiral fracture and permanent nerve damage is not in the same category as the 10 – 12 earlier falls that Magazine described as “actually kind of fun.” (Magazine Dep. 107:13.) In fact, RCL’s own expert stated that Magazine’s injury resulted from “nuances of how she fell on this occasion, and not the fact that she just fell.” (Expert Report of K. Breen [DE-43-2] at 7.)

6 In fact, RCL’s website advertises the opportunity to “cheer on friends from stadium seating with prime wipeout views” of the FlowRider, suggesting that RCL considers falling to be part of its appeal. Things to do onboard, Royal Caribbean International, http://www.royalcaribbean.com/findacruise/experiencetypes/category.do?pagename=onboard_cat_things_to_do [*16] (last visited Mar. 24, 2014).

b. Risk of Serious Bodily Injury or Death

Instead, the relevant risk is the general risk of serious bodily injury or death on the FlowRider. In the circumstances of this case, this is the same risk as what RCL characterizes as “the risk of falling and suffering an injury on the FlowRider” (SJ Mot. at 15 (emphasis added)) and what Magazine describes as “that there was a chance that she would get hurt while participating in the FlowRider” (Response at 9 ¶ 30). Having identified the relevant risk, the Court finds that summary judgment is proper here for two reasons.

First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider (Magazine Dep. 111:22 – 112:2), and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.

Second, the general risk of injury on the FlowRider [*17] is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway. Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious. See Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352 (S.D. Fla. 2013) (risk of heart attack from uneven terrain on a hike is open and obvious, but risk from invisible volcanic gasses might not be); Balachander v. NCL Ltd., 800 F. Supp. 2d 1196 (S.D. Fla. 2011) (risk of drowning while swimming in the ocean is open and obvious); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398, 2012 U.S. Dist. LEXIS 86052, 2012 WL 2367853 (S.D. Fla. June 21, 2012) (risk of slipping while exiting a swimming pool is open and obvious); Young v. Carnival Corp., No. 09-21949, 2011 U.S. Dist. LEXIS 10899, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011) (risk of tripping while hiking is open and obvious).

Although Magazine argues otherwise, there is no evidence that the Court can extract from the [*18] record supporting the existence of any other risk that is not open and obvious and that could have contributed to her injury. The Court will now address each of the three risks suggested in Magazine’s testimony and arguments.

c. Surface of the FlowRider

Magazine argues that she probably would not have participated in the FlowRider if she had known “that the floor of the FlowRider is a metal surface covered with foam and was as hard as it was.” (Response at 24.) She also testified that she had expected prior to her injury that the foam padding over the base of the FlowRider would be as thick as the padding at the back of the FlowRider (Magazine Dep. 102:6 – 103:3), in contrast to her understanding at the time of testimony that “[u]nderneath the surface of the FlowRider there’s some kind of metal.” (Magazine Dep. 88:7 – 9.)

If the FlowRider’s surface were somehow more dangerous than a reasonable person might expect, that might justify requiring a warning. See, e.g., Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1223 (S.D. Fla. 2013) (plaintiff had adequately stated claim that defendant breached its duty to warn of the slippery condition of its walkway). However, there is no evidence [*19] in the record, other than Magazine’s speculation, suggesting that the subsurface of the FlowRider is made of metal or that there is any less padding than would have been apparent to Magazine from her earlier 10 – 12 rides or to any other FlowRider participant who had the opportunity to walk barefoot on the FlowRider’s surface.

d. Particular Medical Conditions

Magazine testified in her deposition that the FlowRider Waiver was inadequate partially because “[t]here’s nothing . . . that I saw, that says if you have any kind of medical issues, that you should not go on this ride.” (Magazine Dep. 90:6 – 8; see also Response at 8 ¶ 29.) If the FlowRider posed a danger to people with particular medical conditions in ways that a reasonable person with such medical conditions might not expect, that too might justify requiring a warning. However, Magazine expressly states that her knee condition did not cause her injury (Magazine Dep. 126:5 – 127:17), and there is no evidence in the record suggesting that Magazine had any other such medical condition that contributed to her injury. Therefore, any failure to warn Magazine about a risk to those with particular medical conditions did not proximately [*20] cause Magazine’s injury.

e. Previous Injuries on the FlowRider

Magazine also appears to argue that RCL had a duty to inform her that people had previously been injured on the FlowRider. She states in her interrogatory responses that “if I had been advised of all the serious injuries that other RCL guests had experienced I would not have even taken a lesson.” (Pl. Interrog. ¶ 9.) In her deposition, Magazine described the FlowRider Waiver as inadequate partially because “they don’t tell you how many people have been injured on this thing.” (Magazine Dep. 90:2 – 13; see also Response at 8 ¶ 29.) Magazine now emphasizes that “at least one person died using the FlowRider and some 147 more were severely injured using it in the short time between the maiden voyages of the Allure of the Seas and Oasis of the Seas and Plaintiff’s accident” whereas “[n]o guest has ever died using any other onboard activities.” (Response at 27 – 28.)

This argument fails because it does not point to the existence of a non-open-and-obvious risk that could have proximately caused Magazine’s injury. It demonstrates that the FlowRider posed a risk of serious bodily injury or death and that RCL knew of this risk.7 However, [*21] RCL is not contesting these points; in fact, RCL’s primary argument is that RCL adequately warned Magazine of the risk of serious bodily injury or death. Magazine has pointed to no other authority, either in law or in customary practice, imposing a duty to inform passengers of specific numbers of injuries. (See Dep. of Daniel Connaughton, Ed.D. [DE-43-3] (“Connaughton Dep.”) 107:5 – 15.)

7 The list of injuries includes some fractures but also many sprained ankles and toe contusions, which are difficult to characterize as “severe” or as substantially similar to Magazine’s injury. (See Def.’s First. Suppl. Resp. to Pl.’s Req. for Produc. [DE-48-5]; Def’s Notice of Serving First Suppl. Resp. to Pl.’s Interrog. [DE-48-6].)

3. Failure of Proof on Essential Element of Claim

Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference. The only risk that materialized was the general risk that one could fall and be injured on the FlowRider, which was so open and obvious that Magazine admits that a warning referring only to [*22] this general risk would not have mattered. Magazine has not pointed to any other risk about which there was any basis to expect a warning. As such, there is no genuine issue of material fact as to the claim that RCL breached its duty to warn.

B. Issues of Fact As To Negligent Instruction

RCL moves for summary judgment on Magazine’s negligent instruction claim on the grounds that (1) Magazine “avers that she received thorough instruction” from the instructors; (2) the “instructor’s use of a balancing rope to aid the FlowRider passengers was reasonable under the circumstances;” and (3) “there is no record evidence that RCL was on notice that the use of the balance rope was improper.” (SJ Mot. at 16 – 18.)

Magazine responds that (1) a reasonable instructor should ensure that participants understand the relevant risks, such as by requiring viewing of the safety video and providing an explicit opportunity for questions; (2) the use of a balancing rope is “not referenced anywhere as an acceptable balancing or teaching method” in the relevant FlowRider manuals (Response at 25); and (3) RCL failed to provide “reasonable instructional progression including the use of a bodyboard prior to stand-up [*23] riding, as suggested by Wave Loch/FlowRider.” (Report of Daniel Connaughton, Ed.D. [DE-40-1] at 7.) Additionally, at oral argument, Magazine’s counsel pointed to a few seconds of the accident video to support the argument that the hand-off of the balancing rope from one instructor to another contributed to Magazine’s loss of balance and subsequent injury.

The Court has already addressed RCL’s alleged failure to warn. Reasonable care by an instructor may very well include ensuring that participants understand the relevant risks. However, Magazine’s claim on this ground fails due to a lack of proximate causation and because the relevant risk was open and obvious.

As Magazine’s expert concedes, there is no evidence in the record that any failure by RCL to provide a bodyboard contributed to the risk of Magazine’s injury. (Connaughton Dep. 52:7 – 56:3.) Therefore, this argument fails as well.

However, because the Parties’ briefing did not address Magazine’s counsel’s argument at the March 20, 2014 hearing regarding the transfer of the balancing rope, the Court cannot conclude at this time, as a matter of law, that RCL’s instructors necessarily exercised reasonable care in their handling of [*24] the balancing rope, and that such breach did not heighten the risk of Magazine’s injury.8 While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.9

8 There is no evidence undercutting RCL’s contention that the instructors had received all of RCL’s training to become a FlowRider instructor. (RCL Dep. 67:14 – 68:19; SJ Mot. at 6 ¶ 19; Response at 6 ¶ 19.) This may preclude a finding that their use of the balancing rope was inherently improper. (Connaughton Dep. 25:4 – 26:15.) However, this does not address whether the instructors exercised reasonable care in handling the balancing rope.

9 Federal courts exercising admiralty jurisdiction “may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 831, 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996). State law reveals a range of approaches. Compare, [*25] e.g., Alber ex rel. Albert v. Ober Gatlinburg, Inc., No. 3:02-CV-277, 2006 U.S. Dist. LEXIS 100150, 2006 WL 208580, at *5, *8 (E.D. Tenn. Jan. 25, 2006) (denying summary judgment on the grounds that (1) reasonable care meant not exposing skiers to risks that “were not an inherent risk of skiing” and (2) genuine issues of material fact remained as to “the adequacy of the ski lesson . . . and whether that lack of instruction was a proximate cause of [plaintiff’s] fall and injuries.”) and Derricotte v. United Skates of Am., 350 N.J. Super. 227, 794 A.2d 867, 871 (N.J. Super. Ct. App. Div. 2002) (“[P]laintiff’s fall as a result of the rink’s alleged negligence in teaching her how to skate was not an ‘inherent,’ ‘obvious’ or ‘necessary’ risk of skating.”) with Fredrickson v. Mackey, 196 Kan. 542, 413 P.2d 86, 89 (Kan. 1966) (offering horse-riding lessons does not turn a defendant into an “insurer against all possibility of injury or accident”).

Magazine testified that the instructor holding the rope pulled her closer to the front and the middle of the FlowRider, where the water flow was considerably stronger, before she was ready, resulting in her being unable to control the flowboard as she fell. (Magazine Dep. 116:10 – 17, 118:7 – 119:8.) Furthermore, [*26] a jury could view the video of Magazine’s accident as corroborating her testimony and as showing that the hand-off of the balancing rope contributed to the risk of Magazine’s injury.

The Parties’ papers did not address Magazine’s claim as framed in this fashion. Given this framing, these issues remain:

(1) Did the instructors’ handling of the balancing rope contribute to the risk of Magazine’s particular injury?

(2) Was the resulting risk greater than the inherent risk of injury on the FlowRider?

RCL’s response that “the rope helped to maintain Plaintiff’s balance before she fell” (SJ Mot. at 7 ¶ 24) does not adequately address these issues. The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” (SJ Mot. at 18) is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions. See Long v. Celebrity Cruises, Inc., No. 12-22807, 2013 U.S. Dist. LEXIS 164035, 2013 WL 6043918, at *3 (S.D. Fla. Aug. 1, 2013) [*27] (collecting cases).

RCL also argues that Magazine’s testimony is speculative and therefore insufficient to defeat summary judgment. However, the direct testimony of an accident victim about her own accident is not “speculation.” The two cases that RCL cites are not applicable. (Def.’s Reply in Supp. of Mot. for Final Summ. J. at 10.) The first case, Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827 (11th Cir. 2013), addresses the procedurally distinct burden-shifting framework of employment discrimination. The second case, Doe v. NCL (Bahamas) Ltd., No. 11-22230, 2012 U.S. Dist. LEXIS 162654, 2012 WL 5512347 (S.D. Fla. Nov. 14, 2012), involves a plaintiff’s initial speculation that contradicted that same plaintiff’s later representations to the court, rather than a plaintiff’s testimony on a subject about which she has personal knowledge.10

10 Magazine’s testimony about her accident thus differs from her speculation as to the composition of the FlowRider’s subsurface.

Because the Parties have not focused on the reframed issues, the Court cannot conclude at this time that there are no genuine issues of material fact as to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable [*28] care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury. The Court is mindful that accidents, sadly, do happen, and a cruise ship operator “is not an insurer of its passengers’ safety. There thus must be some failure to exercise due care before liability may be imposed.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) (citation omitted). If Magazine fails to establish the necessary evidentiary support for this claim at trial, the Court will entertain a motion for a directed verdict after she rests her case.

IV. Conclusion

Accordingly, it is

ORDERED that

1. Defendant’s Motion for Final Summary Judgment [DE-41] is GRANTED IN PART AND DENIED IN PART as follows:

a) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “caused an unreasonably dangerous condition under the circumstances.”

b) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “negligently maintained the Flowrider in question.”

c) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that “the Flowrider in which the Plaintiff fell was negligently designed.”

d) GRANTED WITH PREJUDICE with respect to Magazine’s allegation [*29] that RCL “failed to warn the Plaintiff and fellow passengers of a dangerous and hazardous condition about which it knew or should have known.”

e) DENIED with respect to Magazine’s reframed allegation that RCL negligently instructed her in the use of the FlowRider.

2. The deadline to file the Joint Pretrial Stipulation, proposed jury instructions and verdict form, and Motions in Limine and Responses [see DE-8 at 2] is EXTENDED to April 10, 2014.

3. The Pretrial Conference is RESCHEDULED to 1:30 pm on April 22, 2014.

4. Defendant’s Motion in Limine to Admit Evidence of Defendant’s Warnings Regarding the FlowRider [DE-29] is DENIED as failing to comply with the requirements set in this Court’s March 12, 2013 Order [DE-8 at 2].

DONE and ORDERED in Miami, Florida, this 27th day of March, 2014.

/s/ Patricia A. Seitz

PATRICIA A. SEITZ

UNITED STATES DISTRICT JUDGE


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

This decision was recently upheld by the Florida Supreme Court in Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

A camp for ill children can be sued by injured parents just as any summer camp. That was not the issue here. The language of the release was the only issue.

Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

State: Florida Court of Appeal, Fifth District

Plaintiff: Stacy Sanislo and Eric Sanislo, in the trial court, defendants on appeal

Defendant: Give Kids The World, Inc., plaintiff on appeal, defendant at the trial court level

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendant

Year: 2012

This case is fairly mundane from the standpoint of release law. However, the concurring opinion at the end makes a great point that has relevance.

The defendant GKTW (I’ll refer to the parties as they were at the trial court) grants wishes to seriously ill children. The plaintiffs’ applied and were granted the opportunity for their ill child to attend the camp.

While at the camp, a lift on the back of a horse-drawn wagon broke because the weight limit of the lift had been exceeded. The wife, Stacy was injured. She and her husband sued the camp.

The trial court denied the defendants motion for summary judgment on the release signed by the parties. The motion was denied because the trial court found the language in the release did not rise to the level necessary to inform the plaintiff’s they were giving up legal rights. The matter went to, and the plaintiff prevailed in their claims.

The defendant appealed.

Summary of the case

The issue was the same as in many prior cases. First, the plaintiff argued the release language did not meet Florida’s law. The court’s response was quite simple.

Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable, unless they contravene public policy. The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away.

The next issue was the release did not contain the word negligence. “This Court has expressly “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.”

Language such as “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to stop a claim. A release also must not list each way a party can be injured to be effective.

The court then looked at the unequal bargaining position argument: “this Court must consider the parties’ relative bargaining power in determining the enforceability of a release.”

Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position. However, Florida courts have held that the bargaining power of the parties will not be considered unequal in settings outside of the public utility or public function context.

However athletic contests and recreational activities are public utility nature or a public function.

The final argument was the release was offered as a “take it or leave it” basis. To have their daughters wish fulfilled the plaintiff’s had to sign a release. However parental desire to fulfill a child’s wish is not unequal bargaining power.

The court then made this final statement. They [the plaintiff’s] were provided a copy of the release at the time they applied to the Make-A-Wish Foundation and made a decision to waive certain rights. GKTW is entitled to enforcement of that release.

Of interest was the concurring opinion. A concurring opinion is one where a judge on the appeal panel agrees with the outcome, but his agreement is based on a different legal issue or the judge wants to make a point. It does not change the opinion, and it does not add additional weight to the opinion. However, it is usually quite educational and provides an opportunity to understand the court.

In this case, the concurring opinion looked at the issue of the language of the release.

…a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood.

The great statement was the last. “The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same.

So Now What?

This is a simple summer camp case, except the injured party was the parent rather than the child. If you run a summer camp, you may want to make sure your release covers all family members, not just the campers. Parents picking up their children can be hurt as well as siblings who are investigating the outdoors while there.

However, the great take away points are the last sentences in the opinion and the concurring opinion.

1.      Get the release to the parties in advance

2.    Use the word negligence in your release.

What do you think? Leave a comment.

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

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#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, GKTW, Give Kids The World, Inc., Make a Wish, wheelchair, lift, release, negligence,

 

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Perfect example of a flaw in our system hiring a lifeguard increases your chance of a lawsuit in Florida; No lifeguard no liability.

Don’t take this as a condemnation of the entire system unless you understand it

This article looks at a major hole created by lawsuits in our system. Once a city in Florida hires a lifeguard it accepts responsibility for the people swimming in the waters around the guard. If the guard does not act responsible, i.e. someone drowns, then the city can be sued.

However if no guard is there then there is no liability for the city.

Because it is impossible to prove that a lifeguard did their job right when a jury is looking at the loss of a loved one, hiring a lifeguard brings on lawsuits.

The solution is simple. It requires an acceptance of reality. People are going to drown no matter how many lifeguards maybe on the beach. Pass a law saying that cities are not liable unless the actions of the lifeguards are gross or wilful and wanton. Immunity for the city will put lifeguards on the beaches.

See Are lifeguards a liability? However be cognizant that some of the legal opinions are not from attorneys. The legal basis for those statements is suspect.

What do you think? Leave a comment.

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Copyright 2014 Recreation Law (720) 334-8529

 

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Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

This case was upheld by the Florida Supreme Court in Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79 [Editor]

Give Kids The World, Inc., Appellant, v. Stacy Sanislo and Eric Sanislo, Appellees.

Case No. 5D11-748

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

May 11, 2012, Opinion Filed

PRIOR HISTORY: [*1]

Appeal from the Circuit Court for Osceola County, Jeffrey Fleming, Judge.

COUNSEL: Wm. Jere Tolton, lll, of Ogden & Sullivan, P.A., Tampa, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Orlando, for Appellant.

Michael J. Damaso, ll, of Wooten, Kimbrough and Normand, P.A., Orlando, and Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellees.

JUDGES: ORFINGER, C.J., and PALMER, J., concur. COHEN, J., concurs and concurs specially with opinion.

OPINION

PER CURIAM.

Give Kids the World, Inc. (“GKTW”), the defendant below, appeals a final judgment entered against it in a negligence action. GKTW argues that the lower court erred by denying its pretrial motion for summary judgment on its affirmative defense of release. We agree and reverse.

GKTW is a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village, the Give Kids the World Village (“the Village”). Stacy and Eric Sanislo (“the Sanislos”) are the parents of a young girl with a serious illness. In November 2004, the Sanislos executed a liability release to GKTW in connection with a “wish request” that benefitted their daughter.1 The release, in pertinent part, provided:

By [*2] my/our signature(s) set forth below, and in consideration of Give Kids the World, Inc. granting said wish, I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of the release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.

. . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from 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, or damage to or theft of our personal belongings, jewelry or other personal property which may occur while staying at the Give Kids the World Village.

The wish request was approved and, upon their arrival at the Village from the state of Washington, the Sanislos executed another liability release [*3] with identical language.

1 Fulfillment of a child’s wish is accomplished in conjunction with the Make-AWish Foundation, a separate entity from GKTW.

During the course of her stay at the Village, Stacy Sanislo was injured when she, along with her husband, posed for a picture on a pneumatic wheelchair lift that was attached to the back of a horse-drawn wagon. The lift collapsed because the weight limit had been exceeded, injuring Ms. Sanislo. The Sanislos brought suit against GKTW, alleging that Ms. Sanislo’s injuries were caused by GKTW’s negligence. In its answer, GKTW asserted the affirmative defense of release. Subsequently, GKTW filed a motion for summary judgment, arguing that the signed liability releases precluded a finding of liability. The Sanislos filed a motion for partial summary judgment on the issue of release as well. The trial court denied GKTW’s motion, but granted that of the Sanislos.2 Following a jury verdict, judgment was entered in the Sanislos’ favor.

2 The parties stipulated that if the trial court granted one of the motions for summary judgment, then the other should be denied.

On appeal, GKTW correctly asserts that it was entitled to summary judgment based on the [*4] release. [HN1] Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006)). The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001). This Court has expressly “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.” Cain, 932 So. 2d at 578. In Cain, this Court noted that an exculpatory clause absolving a defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to encompass the plaintiff’s negligence action filed against a defendant track owner in connection with motocross bike riding. Id. at 579; see also Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436, 437 (Fla. 5th DCA 1990) (determining that “any and [*5] all claims, demands, damages, actions, causes of action, or suits in equity, of whatsoever kind or nature” encompassed negligent action). A release need not list each possible manner in which the releasor could be injured in order to be effective. Cf. DeBoer v. Fla. Offroaders Driver’s Ass’n, Inc., 622 So. 2d 1134, 1136 (Fla. 5th DCA 1993).

The instant release contains two separate provisions releasing GKTW from liability. One provision releases GKTW from “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 . . . which may occur while staying at the Give Kids the World Village.” This language is markedly similar to the language in the release signed by the plaintiff in Cain, which encompassed the release of a negligence action. 932 So. 2d at 577. A second provision releases GKTW from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . . .” This language is broad enough to encompass negligence claims arising from the injuries suffered by Ms. Sanislo due to the collapse of the wheelchair lift.

The Sanislos argue that the release is not [*6] clear and unambiguous because it applies to liability arising “in connection with the preparation, execution and fulfillment of said wish.” They suggest the nature and scope of the wish is not clear or defined and thus renders the release unenforceable. However, the wish, which was requested by the Sanislos, clearly encompassed events at the Village related to their stay and attendance at Orlando area theme parks. The Sanislos’ interpretation is not likely the interpretation that an “ordinary and knowledgeable person” would give to the clause. See Raveson, 793 So. 2d at 1173. The language used clearly and unambiguously releases GKTW from liability for the physical injuries Ms. Sanislo sustained during her stay at the Village, and was sufficiently clear to make the Sanislos aware of the breadth of the scope of the release and what rights they were contracting away. [HN2] The ability to predict each and every potential injury is unattainable and is not required to uphold an exculpatory provision within a release.

[HN3] In addition to assessing the clarity of the language used in releases, this Court must consider the parties’ relative bargaining power in determining the enforceability of a release. [*7] Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973). Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position. Id. However, Florida courts have held that the bargaining power of the parties will not be considered unequal in settings outside of the public utility or public function context. For instance, in Banfield v. Louis, 589 So. 2d 441, 443-44 (Fla. 4th DCA 1991), the court upheld the enforcement of a release executed by a participant in a triathlon and the trial court’s ruling that a disparity in bargaining power was “not applicable to entry of athletic contests of this nature, where a party is not required to enter it and not entitled to participate unless they want to.” The Banfield court emphasized that the application of Ivey Plants was limited to circumstances in which a release was executed on behalf of a public utility or a company serving some public function. Id. at 444-45. Consistent with this analysis, Florida courts have refused to find an inequality of bargaining [*8] power in recreational settings. Id.; DeBoer, 622 So. 2d at 1136. Similarly, in Hardage Enterprises, this Court found that an exculpatory clause in an agreement entered into by the owner of a hotel complex and a construction manager of the complex was enforceable because its language was unambiguous and the parties were not in a position of unequal bargaining power. 570 So. 2d at 438. This Court explained that the case did not present “a situation where public policy mandates the protection of consumers who are offered a contract in a ‘take it or leave it’ form.” Id. at 439.

GKTW argues that the bargaining power of the parties cannot be viewed as unequal, because the Sanislos voluntarily participated in the GKTW program. The Sanislos, for their part, argue that the parties are of unequal bargaining power because they were offered a contract in a “take it or leave it” form, and GKTW gave them no choice but to sign the release in order to have their daughter’s wish fulfilled. Unfortunately for the Sanislos, however, the instant case is more akin to Banfield and DeBoer than it is to Ivey Plants. The Sanislos’ desire to fulfill their ill daughter’s wish is certainly understandable, but the [*9] parents’ desire to fulfill the wish and take advantage of the GKTW program does not equate to unequal bargaining power. The Sanislos were not consumers as contemplated in Hardage Enterprises. They were provided a copy of the release at the time they applied to the Make-A-Wish Foundation and made a decision to waive certain rights. GKTW is entitled to enforcement of that release.

REVERSED.

ORFINGER, C.J., and PALMER, J., concur.

COHEN, J., concurs and concurs specially with opinion.

CONCUR BY: COHEN

CONCUR

COHEN, J., concurring specially.

If I were writing on a clean slate, I would affirm the trial court’s denial of GKTW’s summary judgment. I am bound, however, to follow this Court’s prior decisions that do not require an express reference to negligence in a release in order to render the release effective to such actions. This District stands alone on this position. See Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); 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. 3rd DCA 1980).

The better view is to require an explicit provision to that [*10] effect. Exculpatory clauses are “by public policy 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 injury and bear the risk of loss.” Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th DCA 2009). While those trained in the law might understand and appreciate that the general language releasing a party from any and all liability could encompass the injuries suffered by Ms. Sanislo, a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood. The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same.

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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.

This case is a mess, mainly because the defendant’s risk management and release “program” is a mess. Each level of scuba dive required a different release at this dive center, the basic dive releases were so badly written, when the next level of dive was done without a release, the first release failed.

Diodato, etc., vs. Islamorada Asset Management, Inc., etc., et al., 2014 Fla. App. LEXIS 6254

Date of the Decision:

Plaintiff: Dominic Diodato, as personal representative of the estate of his late wife, Aviva Diodato

Defendant: Islamorada Asset Management, Inc., etc., et al.

Plaintiff Claims:

Defendant Defenses: Release

Holding: for the plaintiff

The plaintiff is the husband and the estate of the deceased wife. The husband and wife traveled from Arizona to go diving with the defendant in Florida. This was their second trip to the defendant to dive. The first dive of this trip was called a shallow reef dive. The next day the husband and wife were to do a more advanced dive, a wreck or deep water dive. At the beginning of the second dive, the wife died.

The plaintiff’s signed a release on their first trip to the defendant’s dive operation in 2009. Another release was signed in 2010 for the shallow reef or first dive of the second trip. A third release was to be signed prior to the second dive of the second trip the wreck dive. The dive operation had a “standard practice” of having different releases signed before each dive or level of dive. The dive instructor failed to follow the standard practice and secure the signatures on the third release.

The plaintiff sued, and the trial court dismissed the case based on the releases, both the 2009 and 2010 releases. The plaintiff appealed.

Summary of the case

The court sets out its arguments quit quickly in its review of the facts of the case.

The trial court rejected Mr. Diodato’s argument and evidence that the dive operators had failed to follow their own standard practice of procuring a different form of release for the more advanced dive and the boat trip to be undertaken on the day of the tragedy. [Emphasize added]

This is a very interesting statement by the courts. The defendant had a series of procedures or “standard practice” which the court found the defendant had failed to follow. Failing to follow your standard practice was of concern to the court.

The second issue was the first release signed did not cover the activities on the second dive. That alone was enough for the court to overturn the trial court’s decision.

Applying well-settled Florida’s law disfavoring and narrowly construing exculpatory clauses, we reverse and remand for further proceedings. The scope and duration of the “activity” to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment.

A release needs to have information that relates the risk to the signor that he or she is agreeing to. Here the information in the first two releases was not enough to support a defense for the third activity.

“Scope” would reasonably address the hazardous activity which the releasor has paid the releasee to allow him or her to undertake, and which the releasee insists must be at the releasor’s own risk if the activity is to proceed. “Term” would reasonably address the anticipated duration of the hazardous activity for which the release has been required and obtained. The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by the releasor when compared to another hazardous activity.

Rarely has this been an issue in past decisions in Florida or other states. However, this court beat the issue continuously.

A pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water cave dive or offshore wreck dive, for example. The pre-activity “knowledge review” described in the instructor’s testimony in this case was plainly calculated to communicate the risk of an advanced activity to the participant about to be asked to initial and sign a form of release.

Finally, the court then looked at the release and found that the activity the plaintiff’s undertakings were not defined in the release. “’Activity’ is not defined in the releases signed by Mrs. Diodato….” The court used this analysis to state that the level of risk described in the signed release was different from the level of risk of the dive the plaintiff died doing and as such, it could be argued that the plaintiff did not want to assume or recognize that level of risk.

Instead, the defendants’ April 15 form recognized a different activity and level of risk, expressly defining this activity as an “Excursion” and including within it the hazards of scuba diving as well as “injuries occurring while getting on or off a boat, and other perils of the sea,” a category of harm not addressed in the signed releases.

The court also found that because there was an opportunity in the unsigned release to purchase insurance, if this was a greater risk than the plaintiff might have wanted to accept or a risk the plaintiff wanted to insure.

And because the defendants’ prescribed form was not presented or signed, we will never know whether Mrs. Diodato might have inquired about diver accident insurance, or obtained it, as contemplated by the separate PADI form.

Next the court took on the releases themselves. The releases were only good for one year. The releases also had boxes to initial which the plaintiff’s failed to initial. The quote from the decision below is very telling.

It was the practice of Key Dives to require their customers to sign a release immediately prior to a day’s dive. Each of the Diodatos signed a release in favor of Key Dives, and those connected with Key Dives, on August 29, 2009. On the reverse side of the re-leases, they initialed boxes stating, “[t]his release is valid for one year from the date of this release.” On April 14, 2010, again before a dive, the Diodatos signed other releases; this time they did not initial the box providing for the one-year operative period. They dove that day. On the morning of the April 15, 2010, dive, the dive fatal to Aviva, the Diodatos were late in arriving, and did not sign a release.

The court pointed every failing in this operation and its release, to support its decision. Then the court lays out this bombshell, which honestly; I hope is a mistake.

This final dive was to be a wreck dive to a ship called the Eagle. It was to be an advanced open water dive, a dive for which; according to the Plaintiff, dive industry standards dictated a particular form of release must be used. [Emphasize added]

The dive industry is telling dive operators what releases to be used. I would have brought the dive industry in as a third party defendant and let them pick up the tab for some of this mess.

So Now What?

This decision can also be used as a checklist of what not to do.

First don’t make your procedures so difficult that you can easily screw them up. In this case, each successive series of releases just created openings for a release to fail.

Write a release. Write a release to cover every possible risk. In this case, a release was signed for an easy activity which did not outline the risks of the riskier activities. That is just a waste of paper.

What if on an easy dive, an unexpected storm rolls in that turns the dive into a nightmare. A shallow water dive in the keys near coral can shred divers, making getting into the boat a gymnastic event and provide no place to hide in or out of the water. Are your weather forecasting skills so great that you make sure easy dives do not escalate in risk.  Rather than not diving cover the risks with a release.

Contracts can last forever. Most mortgages are for thirty years, and a mortgage is a contract. Don’t create a release that, in and of itself, is limited. Here the releases were only good for one year. Write your release so it is good forever. Don’t give the plaintiff away  to sue you.

If the plaintiff signed a release, limited to one year, on January 1, and then was also injured on January 1. The plaintiff would only have to wait until January 2nd of the next year to file a lawsuit to eliminate the release as a defense.

You don’t need initials. You need a signature, and you should have a date. Initials are only discussed in releases when someone fails to initial something, and the court points it out. On top of that it just adds time to the entire process. Instead of checking each release for a signature date and other information you may collect, you have to check for a signature, date and each box that may need to be initialed.

You have to have a well-written, properly written release for your operation, your state and your risks. That can be a complicated document. However, don’t overly complicate your operation and in this case eliminate a defense by creating too many standards, following bad advice and not even getting signatures on the documents.

If you need a well-written release, email or call me!

What do you think? Leave a comment.

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Diodato, etc., v. Islamorada Asset Management, Inc., etc., et al., 2014 Fla. App. LEXIS 6254

Diodato, etc., v. Islamorada Asset Management, Inc., etc., et al., 2014 Fla. App. LEXIS 6254

Dominic James Diodato, etc., Appellant, vs. Islamorada Asset Management, Inc., etc., et al., Appellees.

Nos. 3D12-3393 & 3D12-2276

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

2014 Fla. App. LEXIS 6254

April 30, 2014, Opinion Filed

NOTICE:

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: [*1]

Appeals from the Circuit Court for Monroe County, Lower Tribunal No. 11-552-P. Luis M. Garcia, Judge.

COUNSEL: Thomas A. Culmo; Elizabeth K. Russo, for appellant.

Steven G. Schwartz and Mark A. Hruska, for appellees.

JUDGES: Before SUAREZ, ROTHENBERG and SALTER, JJ.

OPINION BY: SALTER

OPINION

SALTER, J.

Dominic Diodato, as personal representative of the estate of his late wife, Aviva Diodato, appeals a final summary judgment in favor of the defendants/appellees, owners and participants in a recreational scuba diving operation known as “Key Dives” in Monroe County, Florida. Mrs. Diodato drowned on April 15, 2010, returning to a dive boat off Islamorada. This occurred at the very beginning of what was to have been an advanced open water dive to the wreck of the Eagle.

The final summary judgment in favor of the defendants was based on printed releases1 signed by Mr. and Mrs. Diodato during a prior visit to the Keys in 2009 and again for a shallow reef dive the day before the tragedy. The trial court rejected Mr. Diodato’s argument and evidence that the dive operators had failed to follow their own standard practice of procuring a different form of release for the more advanced dive and the boat trip to be undertaken on the day [*2] of the tragedy.

1 Though captioned and referred to as “releases,” the provisions at issue here are actually pre-claim exculpatory clauses.

Applying well-settled Florida law disfavoring and narrowly construing exculpatory clauses, we reverse and remand for further proceedings. The scope and duration of the “activity” to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment.

Facts

The trial court’s order recounts the primary elements of Mrs. Diodato’s tragic accidental drowning:

It was the practice of Key Dives to require their customers to sign a release immediately prior to a day’s dive. Each of the Diodatos signed a release in favor of Key Dives, and those connected with Key Dives, on August 29, 2009.2 On the reverse side of the releases, they initialed boxes stating, “[t]his release is valid for one year from the date of this release.” On April 14, 2010, again before a dive, the Diodatos signed other releases; this time they did not initial the box providing for the one-year operative period. They dove that day. On the morning of the April 15, 2010, dive, the dive fatal to Aviva, the Diodatos were late in arriving, and did not [*3] sign a release. This final dive was to be a wreck dive to a ship called the Eagle. It was to be an advanced open water dive, a dive for which, according to the Plaintiff, dive industry standards dictated a particular form of release must be used.

On the morning of the dive, Aviva Diodato showed apprehension about diving. Though the reason for her apprehension will never be known, ocean swells were estimated to be between four and five feet. Dive instructor, now defendant, Leslie Peaker, and Dominic Diodato entered the water first. Aviva followed, but, after only submerging to a depth of approximately ten feet, she signaled to Peaker that she wanted to surface. She surfaced with Peaker accompanying her. He did not help her on board. Aviva reached for and held on to the boat’s granny line, but lost her hold and drifted away from the boat. The boat’s captain, and now defendant, Scott Alan Lorenc[e], sounded an alarm. After a brief search, she was found floating, but drowned.

2 The actual date on these releases was August 25, 2009.

There are additional facts in the record, including the specific language of the three forms of printed release (August 25, 2009; April 14, 2010; and the form Key [*4] Dives intended to obtain before the wreck dive on April 15, 2010), that affect the analysis. The Diodatos were residents of Arizona and obtained their initial PADI certification3 there. Their scuba training and four open water certification dives were in an Arizona lake in August 2009, a few days before their first reef dives in the Florida Keys.

3 PADI is the acronym for the Professional Association of Dive Instructors.

The August 25, 2009, release was signed by Mrs. Diodato in connection with a series of six open water dives over a period of four days:

LIABILITY RELEASE & EXPRESS ASSUMPTION OF RISK

Please read carefully, fill in all blanks and initial each paragraph before signing.

I, (printed name) Aviva Diodato, HEREBY DECLARE THAT I AM A CERTIFIED SCUBA DIVER, TRAINED IN SAFE DIVING PRACTICES, AND AM AWARE OF THE INHERENT HAZARDS OF SKIN AND SCUBA DIVING.

[Initials] I understand and agree that neither Islamorada Asset Mgmt., Inc. dba KEY DIVES; nor the dive supervision staff; nor International PADI, Inc., nor any of their respective employees, officers, agents or assigns (hereinafter referred to as “Released Parties”), may be held liable or responsible in any way for any injury, death [*5] or other damages to me or my family, heirs, or assigns that may occur as a result of my participation in this activity, or as a result of product liability or the negligence of any party, including the Released Parties, whether passive or active.

[Initials] I understand that diving with compressed air involves certain inherent risks, including but not limited to, air expansion injuries, decompression sickness, embolism and drowning. Hyperbaric injuries can occur that require treatment in a recompression chamber. I further understand that this activity may be conducted at a site that is remote, either by time or distance or both, from such a recompression chamber. I still choose to proceed with such activity in spite of the possible absence of a recompression chamber in proximity to the dive site.

[Initials] I declare that I am in good mental and physical fitness for diving, and that I am not under the influence of alcohol, nor am I under the influence of any drugs that are contra-indicatory to diving. If I am taking medication, I declare that I have seen a physician and have approval to dive while under the influence of the medication/drugs.

[Initials] I understand that skin and scuba [*6] diving are physically strenuous activities and that I will be exerting myself during this activity and that if I am injured as a result of heart attack, panic, hyperventilation, etc., that I assume the risk of said injuries and that I will not hold the Released Parties responsible for the same.

[Initials] I will inspect all of my equipment prior to the activity. I will not hold the Released Parties responsible for my failure to inspect my equipment prior to diving.

[Initials] In consideration of being allowed to participate in this activity, I hereby personally assume all risks in connection with the dive(s) for any harm, injury or damage that may befall me while I am a participant, including all risks connected therewith, whether foreseen or unforeseen.

[Initials] I further save and hold harmless said activity and Released Parties from any claim or lawsuit for personal injury, property damage, or wrongful death, by me, my family, estate, heirs, or assigns, arising out of my participation in this activity, including both claims arising during the activity or after I complete the activity.

[Initials] I further declare that I am of lawful age and legally competent to sign this liability [*7] release, or that I have acquired the written consent of my parent or guardian.

[Initials] I understand that the terms herein are contractual and not a mere recital, that this instrument is a legally binding document, and that I have signed this document of my own free act.

I, (printed name) Aviva Diodato, BY THIS INSTRUMENT DO HEREBY EXEMPT AND RELEASE ISLAMORADA ASSET MGMT., INC. d/b/a KEY DIVES, AND THE DIVE SUPERVISION STAFF, AND INTERNATIONAL PADI, INC., AND ALL RELATED ENTITIES AS DEFINED ABOVE, FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH, HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO PRODUCT LIABILITY OR THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.

I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS LIABILITY RELEASE AND ASSUMPTION OF RISK BY READING IT BEFORE I SIGNED IT ON BEHALF OF MYSELF AND MY HEIRS.

(Aviva Diodato signature)

Signature of Participant

8/25/09

Date

As already noted, Mrs. Diodato also initialed a provision on the reverse side of the form which stated: “This release is valid for one (1) year from the date of this release.” Although the record on this point is not explicit, it appears that [*8] the “activity,” referred to ten times in the body of the release, contemplated and paid for by the Diodatos in August 2009, was a series of six open water reef dives (maximum depths ranging from twenty to thirty-five feet) over four days, August 25-28, 2009. There is no summary judgment evidence indicating that, at the time the Diodatos signed the 2009 form, they contemplated (much less made payment for) the 2010 advanced open water dive.

Following the August 2009 dives, Mrs. Diodato’s dive manual next recorded three more lake dives in Arizona. On April 14, 2010, the Diodatos returned to Key Dives and Islamorada for additional dives. The April 14, 2010 release signed by Mrs. Diodato was the same printed form as she had signed on August 25, 2009, but this time she did not sign or initial the “valid for one year” provision on the back of the form. According to the instructor, the dive in question was a recreational “shallow reef” dive to prepare them to participate in an advanced open water, much deeper dive the following day.

For the April 15, 2010, wreck dive, Key Dives procedures required a different form of release. The caption of the form included “boat travel,” and the scope of the [*9] release referred to an “Excursion” (consisting of “scuba diving including those hazards occurring during boat travel to and from the dive site”) rather than an “activity.” The April 15 form included specific reference to additional hazards that were not a part of the August 25, 2009, or April 14, 2010, releases: “slipping or falling while on board, being cut or struck by a boat while in the water; injuries occurring while getting on or off a boat, and other perils of the sea; all of which can result in serious injury or death.” The form also included spaces to indicate whether the passenger/diver had diver accident insurance and, if so, the policy number.

The parties are on common ground that the Diodatos’ instructor for the April 15 advanced open water dive intended to have the Diodatos sign the “Excursion” form of release, but did not do so because they were twenty minutes late arriving at the dock. The instructor testified that two other participants in the dive were waiting on the boat, and “It takes about half an hour to go through the knowledge review, plus the paperwork.” He intended to have the Diodatos sign the papers “when we got back.” And in contrast to the “recreational” [*10] reef dive the preceding day, the April 15 wreck dive was characterized by the instructor as a “deep dive.” The instructor testified at his deposition that “There is no reference, except for the [descent] line. Sometimes people get a little bit unnerved by that, and that is what I felt happened to [Mrs. Diodato].”

The trial court granted the defendants’ motion for final summary judgment based on the language of the August 25, 2009, release (including the “valid for one year” provision on the back of the form) and the April 14, 2010, release. These appeals4 followed.

4 Mr. Diodato appealed the order granting the defendants’ motion for final summary judgment, Case No. 3D12-2276, and later the final judgment itself, which included a provision taxing costs, Case No. 3D12-3393. The appeals were consolidated for all purposes.

Analysis

[HN1] Under Florida Rule of Civil Procedure 1.510(c) and Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000), the appellees were entitled to summary judgment only if the pleadings, affidavits, depositions, discovery responses, and other evidence in the record establish that there is no genuine issue of material fact, such that the appellees [*11] were entitled to such a judgment as a matter of law. Our review is de novo.

We review the exculpatory provisions in the August 25, 2009, and April 14, 2010, releases under the well-settled principle that such clauses are disfavored and are narrowly construed:

[HN2] Exculpatory clauses are disfavored and are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away. Gayon v. Bally’s Total Fitness Corp., 802 So. 2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So. 2d 1171 (Fla. 5th DCA 2001).

Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006).

In the case at hand, another aspect of contract interpretation comes into play as well. [HN3] A release containing exculpatory language is part of a commercial transaction having a discernible scope and term. “Scope” would reasonably address the hazardous activity which the releasor has paid the releasee to allow him or her to undertake, and which the releasee insists must be at the releasor’s own risk if the activity is to proceed. “Term” would reasonably [*12] address the anticipated duration of the hazardous activity for which the release has been required and obtained. The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by the releasor when compared to another hazardous activity.

A pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water cave dive or offshore wreck dive, for example. The pre-activity “knowledge review” described in the instructor’s testimony in this case was plainly calculated to communicate the risk of an advanced activity to the participant about to be asked to initial and sign a form of release. The textual question is whether a particular exculpation clause extends to any and all scuba dives, irrespective of risk and skill level, or whether that clause is limited to the instruction and activity for which payment has been made and risks disclosed.

Examining the two releases signed by Mrs. Diodato in this case (and reprinted in full above), it is apparent that each refers to an “activity” ten times:

…any injury, death, or other damages to me…that may [*13] occur as a result of my participation in this activity, or as a result of product liability or the negligence of any party…

I further understand that this activity may be conducted at a site that is remote… I still choose to proceed with such activity in spite of the possible absence of a recompression chamber in proximity to the dive site.

I understand that skin and scuba diving are physically strenuous activities and that I will be exerting myself during this activity…

I will inspect all of my equipment prior to the activity…

In consideration of my being allowed to participate in this activity, I hereby personally assume all risks in connection with the dive(s) for any harm, injury or damage that may befall me while I am a participant….

I further save and hold harmless said activity and Released Parties from any claim or lawsuit … arising out of my participation in this activity, including both claims arising during the activity or after I complete the activity.

“Activity” [*14] is not defined in the releases signed by Mrs. Diodato, but the record does demonstrate that the August 25, 2009, release was signed in connection with six open water reef dives over the course of four days.5 Similarly, the April 14, 2010, release involved a “shallow reef” or “regular” dive led by an instructor to prepare for the following day’s deep water wreck dive.

5 This explains the logic or necessity for checking the “valid for one year” clause on the back of the form. That provision eliminated the necessity for signing a separate form for each of the six open water dives. It does not necessarily follow that it applied to any then-uncontracted-for, higher-risk, separately-purchased deep water dives ten months later. By inference (and inferences must be indulged in favor of the non-movant), this is why Key Dives required a new release on April 14, 2010, on the return visit within the one-year period, instead of relying on the “valid for one year” provision in the August 2009 release.

The April 15 dive was to be a qualifying dive for the higher-level “advanced open water” PADI certification. Thus the “activity” that is the subject of the April 14 release is different from the definition [*15] of “Excursion” in the form of release that Key Dives procedure specified was to be executed by the Diodatos before the April 15 boat trip and offshore “deep dive.” The “Excursion” form also would have permitted the parties to state in writing whether “diver accident insurance” had been purchased.

Recognizing these differences in the signed and unsigned forms of release at issue here, we turn next to the case law relied upon by the parties. At the outset, we are unpersuaded by the “abandonment by conduct” case law advanced by Mr. Diodato. Cases such as Painter v. Painter, 823 So. 2d 268 (Fla. 2d DCA 2002), and Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla. 1973), hold that a party may waive or abandon contract rights by taking action inconsistent with those rights,6 but in the case at hand there is no indication that Key Dives waived or abandoned the signed releases to the extent of the “activity” encompassed by each. Had the April 15, 2010, dive been a continuation of the basic open water instruction contracted for by the Diodatos in 2009 (and thus a part of the “activity” knowingly contracted for by the parties at that time), the scope and term (because of the one-year [*16] clause) of the 2009 release would apply. Had the April 15, 2010, advanced open water dive involved the same “activity” and level of risk inherent in the “regular” and “shallow reef” dive of April 14, 2010, the scope and term of that release would apply.

6 In those cases, the party entitled to enforce a contractual provision unequivocally revoked or waived its right to enforce the provision. In the present case, the appellees never suggested by word or deed that the signed releases had expired or been superseded. The question is whether those releases applied to every aspect of the Diodatos’ different “activity” on April 15th.

Instead, the defendants’ April 15 form recognized a different activity and level of risk, expressly defining this activity as an “Excursion” and including within it the hazards of scuba diving as well as “injuries occurring while getting on or off a boat, and other perils of the sea,”7 a category of harm not addressed in the signed releases. And because the defendants’ prescribed form was not presented or signed, we will never know whether Mrs. Diodato might have inquired about diver accident insurance, or obtained it, as contemplated by the separate PADI form.

7 We [*17] must respectfully disagree with the conclusion in the order granting summary judgment that the form intended by the defendants to be obtained (but not obtained) for the April 15, 2010, boat travel and dive involves only “a distinction without a substantial difference” when compared to the earlier, signed releases. It is certainly a factual issue, and for a jury to consider, whether Mrs. Diodato’s drowning actually occurred as a result of scuba diving alone, or from “getting on or off a boat, and other perils of the sea” (in this case, significantly-higher waves and current).

We conclude that the analysis in this case turns on: the ambiguity in the term “activity” as used (in the singular) to cabin the scope of the signed releases; the appellees’ concession that a more extensive definition was necessary for the April 15 boat trip and dive; and the settled Florida law that such [HN4] pre-claim exculpatory clauses “are disfavored and thus enforceable only to the extent that the intention to be relieved from liability is made clear and unequivocal.” Hackett v. Grand Seas Resort Owner’s Ass’n, Inc., 93 So. 3d 378, 380 (Fla. 5th DCA 2012) (reversing summary judgment because the “level of ambiguity” [*18] in an exculpatory clause was simply “too great to permit enforcement”).

The trial court’s order granting final summary judgment cited Paralift, Inc. v. Superior Court, 23 Cal. App. 4th 748, 29 Cal. Rptr. 2d 177 (Cal. Ct. App. 1993). In that case, the decedent had signed a skydiving release approximately three years before a tragic accident in which he fell to his death in the Pacific Ocean. The decedent’s estate and daughter argued that the release made no reference to jumps involving heightened risk “over large bodies of water or in particular weather conditions.” The California Court of Appeal found the release to be enforceable. The exculpatory provisions in that case, however, involved “parachuting activities” (plural in each reference) without limitation, and the record demonstrated that the decedent was “a highly qualified and licensed skydiver who had made over 900 skydives prior to the fatal jump which gave rise to this action.” The record also showed he had jumped over the same area (near the coastline) a year before the fatal jump. There was no testimony or documentary evidence to suggest that the releasee in Paralift required different forms for different types of jumps involving different levels [*19] of certification and risk.

Finally, it is apparent that the signed 2009 and 2010 releases in the present case could be slightly modified to be “clear and unequivocal,” using words “so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away,” Cain, 932 So. 2d at 578, by expanding the scope from the “activity” at the time the release is executed to include, for example, any and all future courses of instruction, programs, scuba dives, certification levels, and dive-related boat travel, undertaken by the releasor.

Conclusion

Floridians and visitors to our State are generally free to engage in hazardous recreations such as jet-skiing, para-sailing, skydiving, scuba diving, rodeo competitions, and auto races (to name a few), and to assume contractually all risks associated with those recreations before engaging in them. It remains the case, however, that we disfavor and narrowly construe such pre-claim exculpatory terms. Applying that rule of construction to the record in this case, and under the rigorous standards applicable to our de novo review of a summary judgment, we are constrained to reverse the final summary judgment and the judgment [*20] for costs.

Reversed and remanded for further proceedings.

 

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