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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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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

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

    

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

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Email: Rec-law@recreation-law.com

© 2018 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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


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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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.