TORTS: NEGLIGENCE: CONTRACTS: EXCULPATORY CLAUSES: AN EXCULPATORY CLAUSE MAY CLEARLY AND UNEQUIVOCALLY RELEASE A PARTY OF LIABILITY FOR ITS OWN NEGLIGENCE EVEN IF THE CLAUSE DOES NOT EXPRESSLY MENTION NEGLIGENCE: INDEMNITY PROVISIONS ARE DIFFERENT FROM EXCULPATORY CLAUSES AND DIFFERENT RULES APPLY TO EACH OF THEM: CLAUSE EXCULPATING PARTY FROM “ANY LIABILITY WHATSOEVER IN CONNECTION WITH THE ACTIVITY IN QUESTION AND ANY AND ALL CLAIMS AND CAUSES OF ACTION OF EVERY KIND ARISING FROM ANY AND ALL PHYSICAL OR EMOTIONAL INJURIES AND/OR DAMAGES WHICH MAY HAPPEN TO ME/US CLEARLY AND UNEQUIVOCALLY RELEASED PARTY OF LIABILITY FOR ITS OWN NEGLIGENCE

Sanislo v. Give Kids The World, Inc., ___ So. 3d ___, 40 Fla. L. Weekly S79 (Fla. February 12, 2015)

The defendant was “a non profit organization that provide[d] free ‘storybook’ vacations to seriously ill children and their families at its resort village.” The plaintiff was the mother of a seriously ill child, who applied for a storybook vacation. The plaintiff was injured during the vacation when she was posing for a photograph with her husband and their children while standing on a pneumatic wheelchair lift that collapsed. The trial court denied the defendant’s motion for summary judgment based upon an exculpatory clause, but the Fifth District Court of Appeal reversed in an opinion that conflicted with all of the other district courts of appeal. According to the Fifth District, the word “negligence” is not an essential ingredient in an exculpatory clause releasing a party of liability for its own negligence, but according to the other district courts of appeal it is. The Florida Supreme Court agreed with the Fifth District. The supreme court distinguished cases dealing with indemnity agreements, which do require the express mention of negligence to obtain indemnity of liability for one’s own negligence, because indemnity agreements release a party from liability for injury to an unknown person, and exculpatory clauses release a party of liability for injury to the other party. In this case, the exculpatory clause released the defendant “from any liability whatsoever in connection with the [defendant’s operations]” and applied to “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us.”   The court held that this language clearly and unambiguously released the defendant of liability for its own negligence even though it did not mention the word “negligence.” Justices LaBarga, Perry, Canady, and Polson joined in the per curiam decision of the court. Justice Lewis dissented in an opinion in which Justices Pariente and Quince concurred.

To read more briefs in the Torts: Negligence category of the Kashi Law Letter, please click here, http://www.kashilawletter.com/category/torts/negligence/.

To read more briefs in the Contracts category of the Kashi Law Letter, please click here, http://www.kashilawletter.com/category/contracts/.