By John Tyrrell
On January 6, 2021, a split panel of The Fourth District Court of Appeal for the State of Florida refused to revive a high school soccer player’s negligence lawsuit against the School Board of Broward County (“School Board”) after the trial court granted summary judgment. Elalouf v. School Board of Broward County, 4D19-3272 (Fla. 4th DCA 2021). The trial court found that a pre-game release precluded a negligence claim against the School Board.
In 2013, Appellant/Plaintiff Ethan Elalouf was a 15-year-old varsity soccer player at Western High School in Davie, Florida. In order to play, Elalouf and a parent/guardian were required to execute a one-page Florida High School Athletic Association (“FHSAA”) Consent and Release from Liability Certificate (“Release”). The Release became the central issue in the case.
On December 9, 2013, Elalouf’s team was playing a game at Piper High School in Sunrise, Florida. During the game, Elalouf was tackled by another player, causing him to be propelled a few feet off the soccer field. Elalouf slid through the grass and into the cement exterior of a sand pit used for track and field events. As a result, Elalouf alleged he sustained severe and permanent injuries to his wrist.
On December 8, 2017, Elalouf filed a lawsuit against the School Board seeking damages for the injuries he sustained. His one-count Complaint alleged that the School Board negligently maintained the Piper High School soccer field by allowing an improper structure (the concrete sand pit) to be too close to the soccer field and leaving it uncovered, unsecured, and unpadded so that students on the field could be injured.
On April 12, 2019, the School Board filed an Amended Motion for Summary Judgment, claiming that the Release signed by Elalouf and his father precluded the negligence lawsuit. The School Board centered its argument on Krathen v. School Board of Monroe County, 972 So. 2d 887 (Fla. 3d DCA 2007) . In Krathen, the Third District Court of Appeal affirmed summary judgment in a negligence case brought by a high school cheerleader who was injured during cheerleading practice. The plaintiff in Krathen alleged that the school was negligent in conducting the practice without a coach being present and by failing to place protective mats on the floor to cushion impact. Similar to Elalouf, the high school cheerleader and her parent/guardian signed a FHSAA Release.[1] The Third District Court concluded that “Release clearly and unambiguous indicates the intent to release the School Board from liability.”
In response to the School Board’s Motion, Elalouf countered that the Release did not release the School Board from its own negligence. He argued that the Release neither mentioned the word “negligence” nor explicitly released the School Board from its own negligence. Elalouf elaborated that leaving a cement barrier uncovered near the soccer field was a risk that could not be considered a natural part of the activity. After a hearing on the School Board’s Motion on July 30, 2019, the trial court granted summary judgment, heavily relying on Krathen.
On appeal, Elalouf made two arguments. First, the trial court erred in granting summary judgment because the release language was ambiguous and unenforceable. Second, the trial court erred in granting summary judgment because no policy reason was shown to treat the Release differently than a commercial pre-injury release executed by a parent/guardian on behalf of a minor, which is unenforceable in Florida.[2]
At the outset, the majority found that Elalouf did not preserve his two arguments in the trial court below and held that even if he had preserved his claims, his arguments were without merit. The majority began its analysis by looking at the language found in the Release. It noted that in the student acknowledgment section of the Release, Elalouf agreed to: “release and hold harmless [the school board] of any and all responsibility and liability for any injury or claim resulting from such athletic participation. . . .” The parental consent section of the Release contained the same language. The Release also included a section within the parental consent section in bold-faced all capital letters stating the following:
EVEN IF . . . THE SCHOOL DISTRICT . . . USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED . . . BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM . . . THE SCHOOL DISTRICT . . . IN A LAWSUIT FOR ANY PERSONAL INJURY . . . THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. . . .
The majority held that, like Krathen, the language in the Release “clearly and unambiguously” released the School Board from liability for negligence claims. It also found that the sizing of the font in the Release did not change the meaning or render the release unclear or unambiguous. The majority then distinguished case law cited by Elalouf[3] regarding the effect of qualifying language in exculpatory clauses. Unlike the qualifying language found in the exculpatory clauses cited by Elalouf, the majority found the qualifying statements in the FHSAA Release “clearly warn that serious injuries can occur even if reasonable precautions are taken.” Finally, the majority cited to Kirton in dismissing Elalouf’s public policy-based argument. It found that the public policy reasons addressed in Kirton do not apply to non-commercial activity providers such as the School Board.
The dissenting opinion disagreed with the majority regarding whether Elalouf preserved his arguments on appeal. It found that Elalouf did preserve his argument that the Release was not clear and unequivocal. The dissent took issue with what it deemed to be qualifying language found in the Release between the capitalized bold-faced text and smaller lower-case text. Specifically, the dissent argued that:
This qualifying language, which by its capitalization and size appears far more important than the small print language releasing liability, does not clearly absolve appellee from its own negligence, when that negligence is not a natural part of the activity and where the danger is not inherent in the sport. In this case, appellant was injured when he slammed into a concrete barrier only feet from the soccer field. This type of risk is not inherent in the sport, nor a natural part of the activity. Being hit by a defensive player is and sliding out of bounds might be inherent in the sport, but no one anticipates that the area outside the field of play will have dangerous traps.
The majority opinion highlights the value in requiring student-athletes to sign pre-event liability waivers before participating in sporting activities. Clarity in pre-event liability waivers is key. Here, the School Board emphasized the clear and conspicuous language in the FHSAA Release warning of potential serious injuries that could result from athletic participation and the language releasing the School Board from liability for any injury or claim resulting from such participation to successfully shield itself from any and all liability for negligence.
On February 1, 2021, Elalouf filed Motion for Rehearing, Rehearing En Banc or, Alternatively, for Certification.
John E. Tyrrell is a founding Member of Ricci Tyrrell Johnson & Grey. He has decades of experience in representation of operators and managers of stadiums, arenas, entertainment venues and sports and recreational facilities.
jtyrrell@rtjglaw.com
Adam Mogill is an Associate at Ricci Tyrrell Johnson & Grey who works within the Sports, Event and Recreational Liability practice group.
[1] There was a dispute in the trial court as to whether the FHSAA Release signed in Krathen was identical to the FHSAA Release signed by Elalouf. Neither party attached the release from Krathen as an exhibit to their pleadings.
[2] Kirton v. Fields, 997 So. 2d 349 (Fla. 2008).
[3] Brooks v. Paul, 219 So. 3d 886, 887 (Fla. 4th DCA 2017) (invalidating an exculpatory clause when disclaimer was qualified by a statement that the surgeon would “do the very best to take care of [the patient] according to community medical standards”); Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565, 566-68 (Fla. 2d DCA 2008) (finding ambiguity when the exculpatory clause excluded “any claims based on negligence” but also provided that YMCA would take “every reasonable precaution” and concluding that a reasonable reader might be led to believe that the waiver of liability extended only to claims for injuries that were unavoidable).
