Are releases legal in floridaA “waiver of liability” or “release” is a clause in a contract which just about every person is familiar with. In simple terms, a release in a contract calls for one contracting party to agree, for better or worse, to release the other party from liability based upon the latter party’s commission of certain acts. Typically, such a release is designed to free, or “exculpate”, the other party from liability in the event that the injuring party causes harm to the releasing party during the course of some conduct or activity.

There are a myriad of examples in which release language will be found in a contract. Most common is the contract where one party is being invited to use another party’s facilities in order to engage in an activity. So, for instance, the owners of health clubs, amusement parks, storage facilities, race tracks, dog shows, and the like might well utilize release language in their contracts before allowing the invited participant to use and enjoy their facilities, it being the objective of these owners to insulate themselves from “any and all” liability in the event the participant gets injured or loses his property when using their facilities.

The question arises, is such release language enforceable under Florida law? Generally speaking, exculpatory (i.e., limitation of liability) clauses in contracts are valid in Florida. That said, these clauses are subjected to a decent level of scrutiny by the courts.

Upon our review of the case law, the Florida courts have generally set out the following principles or rules when it comes to evaluating the enforceability of an exculpatory clause:

  • While exculpatory clauses are not looked upon with favor, they will be deemed valid and enforceable when clear and unequivocal.
  • Exculpatory clauses are disfavored and will be strictly construed against the party claiming to be relieved of liability.
  • Exculpatory clauses will be enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.

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The above principles, as generally outlined by the courts in Florida, strongly suggest that exculpatory clauses that seek to waive a party’s liability are enforceable, but only if they are clearly worded and precisely written. Otherwise, the court may choose not to enforce it.

When a party seeks to release itself from liability based on negligence, the appellate courts in Florida appear to be split on the approach. The district courts in Florida, except for the Fifth DCA, take a “bright line” position on the issue of negligence. Accordingly, if a party seeks to release itself from liability for its own negligence, most courts will require the party to clearly state in its contract that it releases itself from liability for its own negligence. The term “negligence”, these courts indicate, must be clearly stated in the release for the exculpatory clause to be effective. Murphy v. YMCA of Lake Wales, Inc., 974 So.2d 565 (2 nd DCA 2008). In the Fifth DCA, however, the courts have indicated that a release need not literally use the term “negligence” in order for it to be effective to bar a negligence action against the party seeking to enforce the release. Cain v. Banka, 932 So.2d 575 (5 th DCA 2006).

We hope that you found this article informative. If you are in need of an affordable commercial litigation attorney in Boynton Beach please contact our Firm for a free consultation.

Filed under: Florida Business

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