> x��m�G�����U E����1�:H$��P��s�X{�#���P�>����?�Z�(W�V�3=��=ݳ���ɽu��t����6n��N������k��;�������ܬ���M����oq[���v���x��}�w�0����>���ә���7�KW>�q��M�����X$��'7���G�ξ�X�������[�ѭ���� ��/�"$��R�2t>���3��Z���G7E=��f8�4I��d�0�(�4��; މֿ�5v����t�����+>���ґ��v5�,\�|�>�_�J>� b�]X� .>_�r-g��ԏ���߲�gH��7������p�\O��� ������a��Mos����稁4�g�@LEŚ#����QL�ѯ�mn��+�������C����>� �W��c����1Kc*��a��'��G����ޕ�� J߃�N�4��vYɭ�SS�;)�~���b�r�/��5��ZE\�}U�\\��_ [� [��;�-�n�~u���~�b�;\GI �{�;�Bh. 2d 590 (Fla 5th D.C.A. 2d 168 (Fla. 1991); Tout v. Hartford Accident and Indemnity Co., 390 So. If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages. Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement I understand that all extra-curricular activities have a certain degree of inherent risk, which includes known and unknown risks. 2d 436, 437 (Fla. 5th DCA 1990), held that “There are no words of art required in a release if the intent of the parties is apparent from the language used.”53 Hardage stands for the proposition that the specific use of the word “negligence” is not required. The drafter should be mindful of statutory prohibitions applicable to exculpatory clauses. However, the failure to appreciate the legal requirements that trigger enforcement of these clauses can spell financial disaster. 1993). 98-001615 15th Judicial Circuit in and for Palm Beach County, Florida. Condominium documents and purchase agreements often contain provisions that disclaim all warranties except the statutory warranties described in Fla. Stat.§718.203 (2000). at 508. It’s harder for a defendant to prove there was a primary implied assumption of risk since there aren’t any legal documents to show the court. Tenant’s Assumption of Risk and Waiver. The validity of such contracts is a separate issue from assumption of risk. Florida law prohibits common carriers such as an airline or railroad from extinguishing liability for its own negligence when acting as a common carrier, as opposed to when it engages in private enterprise.9 In interpreting these clauses, courts typically will analyze the relative bargaining strength of the parties, especially when the indemnitee is a public utility, common carrier, or a provider of an essential public service to a large group of individuals.10 This analysis is employed to evaluate whether a clause runs afoul of public policy.11 It is noteworthy that public policy considerations will defeat an exculpatory clause if doing so would frustrate a statute or ordinance that has the very purpose of insuring the safety of persons.12 This concept would apply to violations of the fire code, building codes, or any other penal statute or ordinance imposing a positive duty. An assumption of risk is a term defining a defense strategy scenario where a plaintiff in a personal injury case places him or herself in a position or commits an act that can result in injury or death, and this person is well aware of the danger posed by the hazard but goes through with the act nonetheless. Courts disfavor these clauses absent clear and unequivocal language expressing the intent of the parties. at 401. Affirmative defenses are used in criminal and civil lawsuits to justify a defendants actions, or to limit his liability. On this point, the agreement should obligate counsel to provide for interim litigation progress reports and notification of all hearings. 2d 205 (Fla. 4th D.C.A. Similarly, in O’Connell v. Walt Disney World Company, 413 So. 64 Id. 1998). In most instances, courts generally will bar a party from recovering damages when an executed waiver or release of liability acknowledges the risk sought to be limited or extinguished.54, In Theis v. J & J Racing Promotions, 571 So. §95.03(1982). These rights include the manner in which a litigated claim will be settled. Under these circumstances, the agreement should include a “cooperation clause” requiring the indemnified party to supply documents and arrange for witnesses to be available for consultation as well as for testimony. Sample Clauses. 1998).Courts have held that specifically including a reference in an exculpatory clause or release that identifies a released party by capacity instead of by name (e.g., officer, director, and agent) is sufficient to absolve those parties of liability as a matter of law. DISCLOSURE OF INFORMATION BY OWNER ABOUT HORSES TO BE TRAINED is hereby stated as follows: 1. 2d 239 (Fla. 3d D.C.A. 21 See Hesson v. Walmsley Construction Co Inc 422 So. One commentator has proposed utilizing the following clause to disclaim implied warranties and limit the buyer to the express warranty coverage enunciated in the provision: “The seller will repair all defects in the property for a period of year(s) from the date of sale. However, this statutory right of indemnification shall not apply to include claims or damages resulting from gross negligence, willful, wanton or intentional misconduct, or for statutory violations. 58 Id. 2d 616, 617 (Fla. 2d D.C.A. 2d 1235 (Fla. 2d D.C.A. Assumption of Risk is a type of defense available for most personal injury and negligence lawsuits. For example, clauses that require a dispute arising from a construction contract to be litigated or arbitrated outside the state of Florida have been declared null and void.69 Similarly, the Florida Legislature has statutorily invalidated contract provisions that attempt to shorten the applicable statute of limitations.70 However, parties are permitted to agree to a waiver of jury trial or stipulate that the law of a foreign jurisdiction shall apply to the judicial resolution of a dispute. or otherwise” phrase in determining that the exculpatory language was broad enough to “encompass all forms of negligence, simple or gross.”58, Courts have a tendency to enforce these clauses when the language reveals a clear intent of the parties to negotiate away a known risk. A plethora of cases discussing these various issues arise in the context of summary judgment. Under California’s law on assumption of the risk, participating in a potentially risky activity (such as attending a baseball game) may automatically shift the burden of injury to the participant. 2d 318 (Fla. 4th D.C.A. v. Radio Station WQBA, 731 So. That in the event Subscriber desires Company to assume greater liability for the performance of its services hereunder, a choice is hereby given of obtaining full or limited liability by paying an additional amount under a graduated scale of rates proportioned to the responsibility, and an additional rider shall be attached to this Agreement setting forth the additional liability of Company and additional charge. 40 Id. 62 In Luria, the exculpatory language addressed by the court was as follows: “It is agreed that Company is not an insurer and that the payments hereinbefore named are based solely upon the value of the services herein described and it is not the intention of the parties that Company assume responsibility for any loss occasioned by malfeasance or misfeasance in the performance of the services under this contract or for any loss or damage sustained through burglary, theft, robbery, fire or other cause or any liability on the part of Company by virtue of this Agreement or because of the relation hereby established. 2d 29 (Fla. 2000). The question arises concerning whether these warranties may be disclaimed. 2d 943 (Fla. 2d DCA 1982), the court addressed whether the implied warranty of habitability in the package sale of a new home and lot by a builder-vendor to an original purchaser could be disclaimed.13 In considering this issue the court commented as follows: Following the lead of Hesson, another court acknowledged that an “implied warranty can be avoided by a disclaimer in the documents of the sale transaction.” In re Barrett Home Corp. , 160 B.R. “PURCHASER(S) ________ (initials)” David L. Abney, Disclaiming the Implied Real Estate Common-Law Warranties, 17 Real Est. 14 Id. 50 Id. “Assumption of the risk” shifts liability for injury to a person who voluntarily engages in sports or another risky activity. An express assumption of risk where the participant acknowledges understanding the nature of the activity and the risks involved, and chooses voluntarily to accept those risks. ~ From the Rules Regulating The Florida Bar, The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. On this score, parties presented with written agreements containing exculpatory clauses prepared solely by the other party should exercise caution. Development, Inc., 543 So. 35 Id. at 443. Exculpatory clauses extinguish or limit liability of a potentially culpable party through the use of disclaimer, assumption of risk and indemnification clauses as well as releases of liability. denied, 305 So. This article examines how Florida courts interpret exculpatory language as utilized in releases, waivers of liability, assumption of risk and indemnification agreements as well as other types of contracts. 23 Banfield, 589 So. Conclusion Exculpatory clauses that extinguish or limit liability enable your clients to limit risk and avoid liability. Loan Assumption Contract Template – If you’re planning to assume a loan from a debtor, you have to seek first the consent of the lender. 59 Id. 1998), upheld strikingly similar exculpatory language to bar a bicycle participant’s claim for personal injury against the tour operator based upon the release. 68 Id. 7 Recently, the Florida Legislature revised Fla. Stat. %PDF-1.3 Following denial of the defendant’s motion for summary judgment a jury trial was conducted in West Palm Beach, Florida. 1979). 54 Banfield, 589 So. Haskell Co. v Lane Co. Ltd., 612 So. 1972). (Magnuson-Moss Warranty Act). This express warranty is the only warranty covering this property. ASSUMPTION OF THE RISKS: I hereby freely assume the inherent risks as well as any other risks not listed that are part of these Activities, and any harm, injury, illness, or loss that may occur to me or my property as a result of my 9 Russell v. Martin, 88 So. 3) Broadly identify the extent of the risks involved, i.e., it is important to make clear whether the exculpatory language is for all risks that might arise. © 2020 The Florida Bar. 2d 35 (Fla. 3d D.C.A. Except to the extent such matter is not covered by the insurance required to be maintained by Tenant under this Lease and such matter is attributable to the gross negligence or willful misconduct of Landlord, Landlord shall not be liable to Tenant, Tenant's employees, agents or invitees for: (i) any damage to property of … This factor found the spotlight in Parkham v. East Bay Raceway, 442 So. 10 Banfield v. Louis, 589 So. 2d 1309 (Fla 1986), dealing with express assumption of the risk which waives only those risks inherent in the sport itself. Frequently these clauses are showcased in contractual agreements involving common carriers, promoters of sporting events, providers of design/construction services, and among participants to e-commerce transactions. 1982), rev. The idea is that the plaintiff can't hold the defendant responsible if the plaintiff knowingly exposed him or herself to the possibility of an injury. 2d 633 (Fla. 1999). In Hesson v. Walmsley Construction Co., 422 So. 38 Dilallo v. Riding Safety, Inc. 687 So. . 2d 587 (Fla. 4th D.C.A. 20 Bert Smith Oldsmobile, Inc. v. Franklin, 400 So. Recognizing that the economic stakes often are high, counsel must be aware of the pitfalls associated with the drafting and interpretation of such clauses. §718.303(2) (2000), resolves the question by providing that “a provision of this chapter may not be waived if the waiver would adversely affect the rights of a unit owner.” Since a waiver would adversely affect the benefits derived from the §718.203 warranty provisions, the language of §718.303(2) has the effect of making any attempted disclaimer or waiver unenforceable. 28 Id. 33 Id at 446. 2d at 93, 94. 65, In a construction setting, owners often seek to exculpate their own monetary liability for delays they may cause to contractors engaged in construction on their behalf. See Shorter v. Drury, 103 Wn.2d 645, 653, 695 P.2d 116 (1985). In California, a plaintiff who has “assumed the risk” is barred from recovering in a personal injury lawsuit unless: The defendant was grossly … 2d 92 (Fla. 2d DCA 1990), the court granted summary judgment and barred the recovery of damages sustained by a participating driver to a sprint car race known as the “Dash for Cash.” During the Dash for Cash a nonracing vehicle improperly entered the track and struck the driver, resulting in his death.55 Prior to the race, the deceased driver executed a release and waiver clause that “released the track from liability whether caused by the negligence of the releasees or otherwise.”56 The court found the exculpatory language to be “clear, unambiguous, unequivocal, broad enough and specific enough to protect appellees (race promoters) from their own negligence, even if their actions constituted gross negligence.”57 In reaching its holding, the court focused specifically on the “own negligence. denied, 289 So. The risks include, but are not limited to, those ... so long as the clause severed does not affect the intent of the parties. 2d 353 (Fla. 4th D.C.A. Fla. 1993). 2d at 629 Although applicable to residential property the doctrine of “caveat emptor” remains applicable to the sale of commercial real estate. at 448. Implied Assumption of Risk. 13 Hesson, 422 So. 3 Fuentes v. Owen, 310 So. 67 This factor evidences an intent that the existing risk was appreciated and negotiated between the parties. What kinds of injuries can be covered by an assumption of risk agreement? Many of these clauses can spell financial disaster graduate of Ohio University and the Cleveland-Marshall College of and... 1990 ), dealing with these indemnification issues has been furnished for review.72 conduct alleged but... Is extremely contagious and is admitted to practice in Florida and Ohio the. A design professional ’ s motion for summary judgment a jury trial was conducted in West Palm Beach County Florida. 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In Parkham, a patron paid $1 for insurance in order to view a car race from a restricted pit area in close proximity to the racetrack.44 In conjunction with payment of the insurance fee, the patron was asked to sign a “form for insurance.”45 In fact, the document consisted of a standard form release that contained multiple signatures of other patrons.46 When the form was presented to the patron for signature, only the signatures of other patrons were displayed. THERE IS NO IMPLIED WARRANTY OF HABITABILITY OR OF GOOD WORKMANLIKE CONSTRUCTION. Banfield, 589 So. 4 0 obj 57 Id. §725.06(1)(2001) dealing with indemnification among parties to a construction contract. 17, General Rules for Drafting Exculpatory Clauses At the heart of every analysis over enforcement of an exculpatory clause lies the issue of conspicuousness of the language employed. Courts strictly construe exculpatory clauses against the party seeking to rely on them. 6) When feasible, make sure that a person with authority to speak for the organization is available to explain the risks to the other party. §672.316 (2001). 1 University Plaza Shopping Center, Inc. v. Stewart, 272 So. 47 Id. 12 John’s Pass Seafood Co. v. Weber, 369 So. ‘To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.’ 42 Id. A sample disclaimer of warranty clause is as follows: “WARRANTY AND DISCLAIMER. The court denied summary judgment because it was unclear whether the patron was deceived or misled by the raceway employee when instructed to sign a form where the release language was hidden from view.52 The holding in Parkham emphasizes that the party benefiting from the release must demonstrate that the injured party knowingly waived and released a known risk. Klingemann shall not, except for his intentional … 1983). The indemnification agreement should establish a standard of care applicable to the lawyer assigned to defend an indemnified party. In Ashcroft, the Florida Supreme Court held that horseracing on a track with a negligently placed exit gap is not an inherent risk for jockeys who participate in the sport of horseracing. Buyer, to the extent permitted by law, is purchasing the Unit and its interest in the recreational facilities and common elements “AS IS” and should undertake whatever inspections of the Unit, common elements and recreational facilities Buyer so desires in order to assure Buyer as to the quality and condition of the buildings and improvements. 1985), the U.S. Court of Appeals for the 11th Circuit considered whether a limitation of liability and indemnification clause would exculpate a professional engineer from his own negligence. §713.20(2) (2001). “If the Indemnifying Party shall assume control of the defense of any Third Party Claim in accordance with the above provisions, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Third Party Claim, if the settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party. Exculpatory Clause. Lesser is a graduate of Ohio University and the Cleveland-Marshall College of Law and is admitted to practice in Florida and Ohio. Statement of Waiver of Liability and Assumption of Risk Related to Coronavirus/COVID-19. A sample provision dealing with these indemnification issues has been furnished for review.72. The fees and expenses of such separate counsel shall be paid by the Indemnified Party; provided, however, that the Indemnifying Party shall pay the reasonable fees and expenses of such separate counsel (i) incurred by the Indemnified Party after it shall have given notice of such Third Party Claim to the Indemnifying Party and (ii) prior to the date, the Indemnifying Party shall fail or refuse to acknowledge that it will have an indemnity obligation for such Third Party Claim (and any losses, liabilities, costs and expenses relating thereto) as provided hereunder or (iii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would, under applicable code or rules of professional conduct or responsibility, create a conflict of interest. Construction contracts often contain “no damage for delay” clauses. "Assumption of the risk" is a legal doctrine that may prevent an injured person from winning a personal injury lawsuit or getting an injury-related insurance settlement. 2d 460 (Fla. 1989). %��������� 2001); Marriott Corp v. Dasta, 26 F.3d 1057 (11th Cir. 18 Belle Plaza Condominium Association, Inc. v. B.C.E. The entire risk as to the performance, safety and efficacy of any invention claimed in the Licensed Patents or of any Licensed Products is assumed by ZelleRx, its Sublicensees and Affiliates of either, provided that such assumption of the risk shall not apply to the intentional misconduct or gross negligence by Klingemann. However, to the fullest extent permitted by law, Owner and Marriott Corporation and their agents and employees shall not be held responsible for any loss or damage sustained by Contractor, or additional costs incurred by Contractor, through delay caused by Owner or Marriott Corporation, or their agents or employees, or any other Contractor or Subcontractor, or by abnormal weather conditions, or by any other cause, and Contractor agrees that the sole right and remedy therefor shall be an extension of time.” 26 F.3d at 1067. Lesser is a shareholder in Becker and Poliakoff, P.A., Ft. Lauderdale, where he devotes his practice exclusively to construction law and litigation. . 2. 1994); Newbury Square Development Corp. v. Southern Landmark Inc, 578 So. THERE ARE ABSOLUTELY NO IMPLIED WARRANTIES OF ANY KIND COVERING THIS PROPERTY. 30 Id. 2d 444 (Fla. 5th DCA 1982),31 a nine-year-old child sustained injuries while horseback riding at Walt Disney World. If any clause, phrase, or word is in conflict with state law, then that single part is null and void. 48 Id. 46 Id. Assumption of Risk. 9) The document containing the exculpatory language should be properly executed and witnessed. If there is ambiguity in the exculpatory language, the clause is likely to be unenforceable. 2d 80 (Fla. 2000); Seifert v. U.S. Home Corp., 750 So. Corp., 282 So. 7) Draft the document to provide an option to the person accepting the risk to elect to acquire more protection by paying additional fees. In order to obtain the benefits of this express warranty, the purchaser(s) must give written notice of any defect within year(s) from the date of sale. On this score, conspicuous means a larger type size, a different type style, e.g., bold or all capitals, or a different color.20 While this statute is not controlling beyond the sale of goods, the underlying rationale suggests that similar considerations would apply to exculpatory language utilized in other transactionssuch as those involving real estate.21, Intent of the Parties Is of Paramount Importance Intent of the parties is of paramount importance when determining the enforcement of disclaimers, waivers, releases of liability, and indemnification clauses.22 Exculpatory clauses although disfavored will be enforced if the intent to relieve a party of its own negligence is clear and unequivocal.23 In describing exculpatory language that will be enforced, one court stated, “The wording of such an agreement must be so clear and understandable that an ordinary and knowledgeable party to it will know what he is contracting away.”24. However, from a practical standpoint, utilization of the word “negligence” should increase the likelihood of enforcement. It appears that the court based its decision on that portion of the clause which provided an option to the customer to increase liability coverage by paying an additional sum.62 This factor strongly supports the conclusion that both parties intended to exculpate the alarm company. 2d 155 (Fla. 3d D.C.A. 8) Courts are more inclined to enforce monetary limitations on liability as opposed to extinguishing liability. It alleges that the risks assumed are not those created by the defendant’s negligence, but rather by the nature of the activity itself. As a result, the participant filed a lawsuit against the race promoters. 1994), reh’g denied, 37 F.3d 639 (11th Cir. Drafters of exculpatory clauses must be sufficiently specific to release liability for certain conduct yet be broad enough to encompass other related acts and conduct that may result in liability. 1979), cert. << /Length 5 0 R /Filter /FlateDecode >> x��m�G�����U E����1�:H$��P��s�X{�#���P�>����?�Z�(W�V�3=��=ݳ���ɽu��t����6n��N������k��;�������ܬ���M����oq[���v���x��}�w�0����>���ә���7�KW>�q��M�����X$��'7���G�ξ�X�������[�ѭ���� ��/�"$��R�2t>���3��Z���G7E=��f8�4I��d�0�(�4��; މֿ�5v����t�����+>���ґ��v5�,\�|�>�_�J>� b�]X� .>_�r-g��ԏ���߲�gH��7������p�\O��� ������a��Mos����稁4�g�@LEŚ#����QL�ѯ�mn��+�������C����>� �W��c����1Kc*��a��'��G����ޕ�� J߃�N�4��vYɭ�SS�;)�~���b�r�/��5��ZE\�}U�\\��_ [� [��;�-�n�~u���~�b�;\GI �{�;�Bh. 2d 590 (Fla 5th D.C.A. 2d 168 (Fla. 1991); Tout v. Hartford Accident and Indemnity Co., 390 So. If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages. Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement I understand that all extra-curricular activities have a certain degree of inherent risk, which includes known and unknown risks. 2d 436, 437 (Fla. 5th DCA 1990), held that “There are no words of art required in a release if the intent of the parties is apparent from the language used.”53 Hardage stands for the proposition that the specific use of the word “negligence” is not required. The drafter should be mindful of statutory prohibitions applicable to exculpatory clauses. However, the failure to appreciate the legal requirements that trigger enforcement of these clauses can spell financial disaster. 1993). 98-001615 15th Judicial Circuit in and for Palm Beach County, Florida. Condominium documents and purchase agreements often contain provisions that disclaim all warranties except the statutory warranties described in Fla. Stat.§718.203 (2000). at 508. It’s harder for a defendant to prove there was a primary implied assumption of risk since there aren’t any legal documents to show the court. Tenant’s Assumption of Risk and Waiver. The validity of such contracts is a separate issue from assumption of risk. Florida law prohibits common carriers such as an airline or railroad from extinguishing liability for its own negligence when acting as a common carrier, as opposed to when it engages in private enterprise.9 In interpreting these clauses, courts typically will analyze the relative bargaining strength of the parties, especially when the indemnitee is a public utility, common carrier, or a provider of an essential public service to a large group of individuals.10 This analysis is employed to evaluate whether a clause runs afoul of public policy.11 It is noteworthy that public policy considerations will defeat an exculpatory clause if doing so would frustrate a statute or ordinance that has the very purpose of insuring the safety of persons.12 This concept would apply to violations of the fire code, building codes, or any other penal statute or ordinance imposing a positive duty. An assumption of risk is a term defining a defense strategy scenario where a plaintiff in a personal injury case places him or herself in a position or commits an act that can result in injury or death, and this person is well aware of the danger posed by the hazard but goes through with the act nonetheless. Courts disfavor these clauses absent clear and unequivocal language expressing the intent of the parties. at 401. Affirmative defenses are used in criminal and civil lawsuits to justify a defendants actions, or to limit his liability. On this point, the agreement should obligate counsel to provide for interim litigation progress reports and notification of all hearings. 2d 205 (Fla. 4th D.C.A. Similarly, in O’Connell v. Walt Disney World Company, 413 So. 64 Id. 1998). In most instances, courts generally will bar a party from recovering damages when an executed waiver or release of liability acknowledges the risk sought to be limited or extinguished.54, In Theis v. J & J Racing Promotions, 571 So. §95.03(1982). These rights include the manner in which a litigated claim will be settled. Under these circumstances, the agreement should include a “cooperation clause” requiring the indemnified party to supply documents and arrange for witnesses to be available for consultation as well as for testimony. Sample Clauses. 1998).Courts have held that specifically including a reference in an exculpatory clause or release that identifies a released party by capacity instead of by name (e.g., officer, director, and agent) is sufficient to absolve those parties of liability as a matter of law. DISCLOSURE OF INFORMATION BY OWNER ABOUT HORSES TO BE TRAINED is hereby stated as follows: 1. 2d 239 (Fla. 3d D.C.A. 21 See Hesson v. Walmsley Construction Co Inc 422 So. One commentator has proposed utilizing the following clause to disclaim implied warranties and limit the buyer to the express warranty coverage enunciated in the provision: “The seller will repair all defects in the property for a period of year(s) from the date of sale. However, this statutory right of indemnification shall not apply to include claims or damages resulting from gross negligence, willful, wanton or intentional misconduct, or for statutory violations. 58 Id. 2d 616, 617 (Fla. 2d D.C.A. 2d 1235 (Fla. 2d D.C.A. Assumption of Risk is a type of defense available for most personal injury and negligence lawsuits. For example, clauses that require a dispute arising from a construction contract to be litigated or arbitrated outside the state of Florida have been declared null and void.69 Similarly, the Florida Legislature has statutorily invalidated contract provisions that attempt to shorten the applicable statute of limitations.70 However, parties are permitted to agree to a waiver of jury trial or stipulate that the law of a foreign jurisdiction shall apply to the judicial resolution of a dispute. or otherwise” phrase in determining that the exculpatory language was broad enough to “encompass all forms of negligence, simple or gross.”58, Courts have a tendency to enforce these clauses when the language reveals a clear intent of the parties to negotiate away a known risk. A plethora of cases discussing these various issues arise in the context of summary judgment. Under California’s law on assumption of the risk, participating in a potentially risky activity (such as attending a baseball game) may automatically shift the burden of injury to the participant. 2d 318 (Fla. 4th D.C.A. v. Radio Station WQBA, 731 So. That in the event Subscriber desires Company to assume greater liability for the performance of its services hereunder, a choice is hereby given of obtaining full or limited liability by paying an additional amount under a graduated scale of rates proportioned to the responsibility, and an additional rider shall be attached to this Agreement setting forth the additional liability of Company and additional charge. 40 Id. 62 In Luria, the exculpatory language addressed by the court was as follows: “It is agreed that Company is not an insurer and that the payments hereinbefore named are based solely upon the value of the services herein described and it is not the intention of the parties that Company assume responsibility for any loss occasioned by malfeasance or misfeasance in the performance of the services under this contract or for any loss or damage sustained through burglary, theft, robbery, fire or other cause or any liability on the part of Company by virtue of this Agreement or because of the relation hereby established. 2d 29 (Fla. 2000). The question arises concerning whether these warranties may be disclaimed. 2d 943 (Fla. 2d DCA 1982), the court addressed whether the implied warranty of habitability in the package sale of a new home and lot by a builder-vendor to an original purchaser could be disclaimed.13 In considering this issue the court commented as follows: Following the lead of Hesson, another court acknowledged that an “implied warranty can be avoided by a disclaimer in the documents of the sale transaction.” In re Barrett Home Corp. , 160 B.R. “PURCHASER(S) ________ (initials)” David L. Abney, Disclaiming the Implied Real Estate Common-Law Warranties, 17 Real Est. 14 Id. 50 Id. “Assumption of the risk” shifts liability for injury to a person who voluntarily engages in sports or another risky activity. An express assumption of risk where the participant acknowledges understanding the nature of the activity and the risks involved, and chooses voluntarily to accept those risks. ~ From the Rules Regulating The Florida Bar, The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. On this score, parties presented with written agreements containing exculpatory clauses prepared solely by the other party should exercise caution. Development, Inc., 543 So. 35 Id. at 443. Exculpatory clauses extinguish or limit liability of a potentially culpable party through the use of disclaimer, assumption of risk and indemnification clauses as well as releases of liability. denied, 305 So. This article examines how Florida courts interpret exculpatory language as utilized in releases, waivers of liability, assumption of risk and indemnification agreements as well as other types of contracts. 23 Banfield, 589 So. Conclusion Exculpatory clauses that extinguish or limit liability enable your clients to limit risk and avoid liability. Loan Assumption Contract Template – If you’re planning to assume a loan from a debtor, you have to seek first the consent of the lender. 59 Id. 1998), upheld strikingly similar exculpatory language to bar a bicycle participant’s claim for personal injury against the tour operator based upon the release. 68 Id. 7 Recently, the Florida Legislature revised Fla. Stat. %PDF-1.3 Following denial of the defendant’s motion for summary judgment a jury trial was conducted in West Palm Beach, Florida. 1979). 54 Banfield, 589 So. Haskell Co. v Lane Co. Ltd., 612 So. 1972). (Magnuson-Moss Warranty Act). This express warranty is the only warranty covering this property. ASSUMPTION OF THE RISKS: I hereby freely assume the inherent risks as well as any other risks not listed that are part of these Activities, and any harm, injury, illness, or loss that may occur to me or my property as a result of my 9 Russell v. Martin, 88 So. 3) Broadly identify the extent of the risks involved, i.e., it is important to make clear whether the exculpatory language is for all risks that might arise. © 2020 The Florida Bar. 2d 35 (Fla. 3d D.C.A. Except to the extent such matter is not covered by the insurance required to be maintained by Tenant under this Lease and such matter is attributable to the gross negligence or willful misconduct of Landlord, Landlord shall not be liable to Tenant, Tenant's employees, agents or invitees for: (i) any damage to property of … This factor found the spotlight in Parkham v. East Bay Raceway, 442 So. 10 Banfield v. Louis, 589 So. 2d 1309 (Fla 1986), dealing with express assumption of the risk which waives only those risks inherent in the sport itself. Frequently these clauses are showcased in contractual agreements involving common carriers, promoters of sporting events, providers of design/construction services, and among participants to e-commerce transactions. 1982), rev. The idea is that the plaintiff can't hold the defendant responsible if the plaintiff knowingly exposed him or herself to the possibility of an injury. 2d 633 (Fla. 1999). In Hesson v. Walmsley Construction Co., 422 So. 38 Dilallo v. Riding Safety, Inc. 687 So. . 2d 587 (Fla. 4th D.C.A. 20 Bert Smith Oldsmobile, Inc. v. Franklin, 400 So. Recognizing that the economic stakes often are high, counsel must be aware of the pitfalls associated with the drafting and interpretation of such clauses. §718.303(2) (2000), resolves the question by providing that “a provision of this chapter may not be waived if the waiver would adversely affect the rights of a unit owner.” Since a waiver would adversely affect the benefits derived from the §718.203 warranty provisions, the language of §718.303(2) has the effect of making any attempted disclaimer or waiver unenforceable. 28 Id. 33 Id at 446. 2d at 93, 94. 65, In a construction setting, owners often seek to exculpate their own monetary liability for delays they may cause to contractors engaged in construction on their behalf. See Shorter v. Drury, 103 Wn.2d 645, 653, 695 P.2d 116 (1985). In California, a plaintiff who has “assumed the risk” is barred from recovering in a personal injury lawsuit unless: The defendant was grossly … 2d 92 (Fla. 2d DCA 1990), the court granted summary judgment and barred the recovery of damages sustained by a participating driver to a sprint car race known as the “Dash for Cash.” During the Dash for Cash a nonracing vehicle improperly entered the track and struck the driver, resulting in his death.55 Prior to the race, the deceased driver executed a release and waiver clause that “released the track from liability whether caused by the negligence of the releasees or otherwise.”56 The court found the exculpatory language to be “clear, unambiguous, unequivocal, broad enough and specific enough to protect appellees (race promoters) from their own negligence, even if their actions constituted gross negligence.”57 In reaching its holding, the court focused specifically on the “own negligence. denied, 289 So. The risks include, but are not limited to, those ... so long as the clause severed does not affect the intent of the parties. 2d 353 (Fla. 4th D.C.A. Fla. 1993). 2d at 629 Although applicable to residential property the doctrine of “caveat emptor” remains applicable to the sale of commercial real estate. at 448. Implied Assumption of Risk. 13 Hesson, 422 So. 3 Fuentes v. Owen, 310 So. 67 This factor evidences an intent that the existing risk was appreciated and negotiated between the parties. What kinds of injuries can be covered by an assumption of risk agreement? Many of these clauses can spell financial disaster graduate of Ohio University and the Cleveland-Marshall College of and... 1990 ), dealing with these indemnification issues has been furnished for review.72 conduct alleged but... Is extremely contagious and is admitted to practice in Florida and Ohio the. A design professional ’ s motion for summary judgment a jury trial was conducted in West Palm Beach County Florida. 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