A Florida state appeals court has reversed a lower court by finding that a Go-Kart operator was not protected by the “waiver and release from liability” form that she signed before she was injured in a Go-Kart accident.
In remanding the case back to the lower court, the appeals court found that the language in the release did not preclude the patron from suing the operator if the operator was negligent as alleged by the patron.
The patron in the case was plaintiff Carol Ann Gillette. Gillette had gone to Family Fun Town in Orange City, Florida. After signing a waiver and release from liability, she took to the facility’s track to compete against other patrons in a Go-Kart race. She ultimately lost control of the Go-Kart and crashed into the railing.
In the lawsuit, she claimed that a Family Fun Center employee “negligently increased the Go-Kart speed during a race.” The lower court held that the waiver and release form signed by Gillette precluded her negligence action. The plaintiff appealed.
Upon review, the appeals court first examined the waiver and release form, which provided in material part:
WAIVER AND RELEASE FROM LIABILITY FOR GO CARTS AND TRACK
In consideration for being permitted to drive Go Karts at Family Fun Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as follows:
“1. I HAVE READ THE RULES FOR OPERATING THE Go Karts, and accept full responsibility for obeying the rules and all other posted rules and warning signs;
“2. I understand that the course of [sic] which the Go Karts operate has curves, which require a degree of skill and responsibility to navigate safely. I have the necessary skill and will exercise the responsibility necessary to operate the Go Karts and navigate the course safely;
“3. The Go Karts are controlled by individual drivers, who are capable of making mistakes and intentionally causing harm to others. I could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inactions of another driver. I freely and knowingly assume this risk. I take full responsibility for any claims or personal injury, death, or damage to personal property arising out of my use of the G [sic] Karts and/or the Go Kart track, whether to me or to other people. On behalf of myself, my heirs, my assigns and my next of kin, I waive all claims for damages, injuries and death sustained to me or property that I may have against Family Fun Town, and its members, managers, agents, employees, successors, and assigns (each a “Released Party”);
“4. I have been provided the opportunity to inspect the Go Karts and the track prior to signing this Waiver AND Release, and the conditions of each is completely satisfactory to me. If they were not, I would not sign this document or operate or ride in the Go Karts and the track are [sic] completely satisfactory to me; and
“5. I understand that the terms of this release are contractual and not a mere recital, and that I have signed this document of my own free act.
“I have read this waiver and release in its entirety. I understand that I am assuming all the risk inherent in operating and/or riding the Go Karts on the track. I understand that it is a release of all claims that I may have against any released part [sic]. I understand that this is the entire agreement between me and any released party and that it cannot be modified or changed in any way by the representation or statements by any released party or by me. I voluntarily sign my name as evidence of my acceptance of all the provisions in this waiver and release and my agreement to be bound by them.”
The appeals court noted “that clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability. UCF Athletics Ass’n v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) (citing Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006); Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998)). To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001) (citing Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590, 591 (Fla. 5th DCA 1998)).
“Here, the release does not expressly state that it includes Appellee’s negligence and, when the document is considered in its totality, it is not clear that negligence of the sort here was intended to be within the scope of the release.”
Attorneys Weighs In
The Miami law firm Troy & Schwartz recently weighed in on the Florida decision in a blog post — http://troyandschwartzlaw.com/2013/12/release-and-waiver-of-liability-agreements-considerations-for-new-businesses/
Specifically, it compared the Gillette release “with a typical fitness club release and waiver of liability,” such as the Illinois case Hussein v. LA Fitness International, LLC, (2013 IL App (1st) 121426 (1st Dist. 2013)).
The health club used the following release:
“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that Member use of L.A. Fitness’ facilities, services, equipment or premises involves risks of injuries to persons and Member assumes full responsibility for such risks. Member hereby releases and holds L.A. Fitness harmless from all liability to Member for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise to the fullest extent permitted by law, while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services, or equipment. See Hussein v. LA Fitness International, LLC. (Our emphasis).”
The firm continued, noting the following “take home point from the Gillette decision when viewed relative to the recent L.A. Fitness case:
“First, the release agreement in the Hussein case would most likely also have been upheld by Florida courts because it specifically referred to negligence claims against L.A. Fitness. It is important to remember, however, that some courts have found that exculpatory clauses do not relieve a fitness center of its own negligence.
“… Second, the wording must not be unclear or ambiguous regarding just what rights the signer is giving up and must be worded in simple, understandable terms. The Gillette agreement was actually quite well written without legalese. The problem with the agreement, however, was that it was legally deficient in stating what rights the signer was actually waiving or giving up.”
Carol Ann Gillette v. All Pro Sports, LLC., D/B/A Family Fun Town; Ct. App., 5th Dist.; Case No. 5D12-1527, 2013 Fla. App. LEXIS 19432; 12/6/13
Attorneys of Record: (for Appellant) D. Paul McCaskill of David & Philpot, P.A., and J. Michael Matthews of J. Michael Matthews, P.A. Maitland. (for Appellee) Bruce R. Bogan of Hilyard, Bogan & Palmer, PA, Orlando.
