Dear Sick and Injured Kid, Your Wish Has Been Granted -- We Now Have Full Immunity for Any Negligent Acts!

The Florida Supremes ruled on a very interesting issue today -- "the enforceability of a pre-injury exculpatory clause that does not contain express language releasing a party of liability for its own negligence or negligent acts."

Even though public policy "disfavors exculpatory contracts because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss," here is what they held:
[T]his agreement would be rendered meaningless if it is deemed ineffective to bar a negligence action solely on the basis of the absence of the legal terms of art “negligence” or “negligent acts” from the otherwise clear and unequivocal language in the agreement.

Despite our conclusion, however, we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions. As noted previously, exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care.
Wait -- but didn't you just??....oh well let's see what Justice Lewis has to say in dissent:
Today the majority leaves our most vulnerable citizens open to catastrophe from those who seek to shield themselves from their own fault. Florida precedent mandates that because the advance liability release and hold harmless agreement signed by the Sanislos did not explicitly and unambiguously warn that Give Kids the World would be released and held harmless for its own failure to exercise reasonable care as previously outlined and required under Florida law, no such waiver was made. I disagree with the decision of the majority that such explicit warning is required only for valid indemnity agreements, but not for combined releases, indemnification, and hold harmless agreements, such as the document in this case.
Is it Give Kids the World or "Give Kids the Business"?


  1. Great music today SFL and Godwhacker!

  2. Thanks! Half bloggers ~ half DJs!

  3. 4 solid posts today. You guys are working overtime.

  4. Not to make an overused argument, but this is a situation where the legislature, rather than the courts, is much better suited in addressing. If the language in the waiver is otherwise clear in what it covers, then, it seems to me, it makes little sense as a judicial matter to require the use of legal jargon (negligence) to somehow make the waiver magically effective. I'm not sure why the dissent thinks that adding the word negligence should be the deciding factor. Moreover, the trend in legal drafting is to promote clear, simple language, which would be more understandable to persons who aren't lawyers anyway. But if the legislature, for other reasons, believes differently, then it could always step in.


  6. P. Guyotat - agree and disagree w/you. I think the result is right. We don't need magic words when this release is clear. The dissent's point, however, is valid: if we are going to require magic words for certain agreements, e.g., indemnification agreements, then why not for releases? The Supreme Court's analysis on this point (indemnification agreement v. release) is weak. We either use magic words or we don't. But don't start splitting hairs about which agreements require them and which don't. At least under the dissent's view, we'd be consistent -- magic words for everything.


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