Abbey Adams Logo

Defending Liability, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Are Available to Practice In Illinois
  • Practices
  • Blog
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Elisabeth K. Eubanks
  • Links
  • Contact Us

January 30, 2014 by Tom

Fifth DCA revises prior opinion regarding enforceability of liability waiver; maintains position that waiver was not specific enough to release negligence of releasee

39 Fla. L. Weekly D223d


Torts — Releases — Action against owner of Go-Kart track,
alleging that defendant’s employee negligently increased Go-Kart speed during a
race, causing plaintiff to sustain injuries when she lost control and crashed
into railing — Error to enter summary judgment for defendant on basis of waiver
and release form signed by plaintiff — It is not clear that the negligence in
question was intended to be within the scope of the release

CAROL ANN GILLETTE, Appellant, v. ALL PRO SPORTS, LLC., D/B/A FAMILY FUN
TOWN, Appellee. 5th District. Case No. 5D12-1527. Opinion filed January 24,
2014. Appeal from the Circuit Court for Volusia County, Terence R. Perkins,
Judge. Counsel: D. Paul McCaskill of David & Philpot, P.A., and J. Michael
Matthews of J. Michael Matthews, P.A. Maitland, for Appellant. Bruce R. Bogan of
Hilyard, Bogan & Palmer, PA, Orlando, for Appellee.

ON MOTION FOR REHEARING

[Original
Opinion at 38 Fla. L. Weekly D2573a
]

(PER CURIAM.) We deny Appellee’s motions for rehearing and rehearing en banc.
For purposes of clarification, we withdraw our prior opinion and substitute this
opinion in its place.
Appellant challenges a summary final judgment in favor of Appellee on her
complaint for injuries she received in a Go-Kart accident at a facility operated
by Appellee. Appellant contends that Appellee’s employee negligently increased
the Go-Kart speed during a race, causing her to lose control of the Go-Kart and
crash into the railing. The lower court held that a waiver and release form
signed by Appellant precluded her negligence action. We reverse.
The sole issue on appeal is whether the waiver and release signed by
Appellant effectively precludes an action based on Appellee’s purported
negligence. The document provides in material part as follows:

WAIVER AND RELEASE FROM LIABILITY


FOR GO CARTS AND TRACK

In consideration for being permitted to drive Go Karts at Family Fun
Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as
follows:

1. I HAVE READ THE RULES FOR OPERATING THE Go Karts, and accept full
responsibility for obeying the rules and all other posted rules and warning
signs;

2. I understand that the course of [sic] which the Go Karts operate
has curves, which require a degree of skill and responsibility to navigate
safely. I have the necessary skill and will exercise the responsibility
necessary to operate the Go Karts and navigate the course safely;

3. The Go Karts are controlled by individual drivers, who are
capable of making mistakes and intentionally causing harm to others. I could be
potentially injured, disabled, or killed, whether by my own actions (or
inactions) or the actions or inactions of another driver. I freely and knowingly
assume this risk. I take full responsibility for any claims or personal injury,
death, or damage to personal property arising out of my use of the G [sic] Karts
and/or the Go Kart track, whether to me or to other people. On behalf of myself,
my heirs, my assigns and my next of kin, I waive all claims for damages,
injuries and death sustained to me or property that I may have against Family
Fun Town, and its members, managers, agents, employees, successors, and assigns
(each a “Released Party”).

4. I have been provided the opportunity to inspect the Go Karts and
the track prior to signing this Waiver AND Release, and the conditions of each
is completely satisfactory to me. If they were not, I would not sign this
document or operate or ride in the Go Karts and the track are [sic] completely
satisfactory to me.

5. I understand that the terms of this release are contractual and
not a mere recital, and that I have signed this document of my own free act. I
have read this waiver and release in its entirety. I understand that I am
assuming all the risk inherent in operating and/or riding the Go Karts on the
track. I understand that it is a release of all claims that I may have against
any released part [sic]. I understand that this is the entire agreement between
me and any released party and that it cannot be modified or changed in any way
by the representation or statements by any released party or by me. I
voluntarily sign my name as evidence of my acceptance of all the provisions in
this waiver and release and my agreement to be bound by them.

Clauses that purport to deny an injured party the right to recover damages
from another who negligently causes injury are strictly construed against the
party seeking to be relieved of liability. UCF Athletics Ass’n v.
Plancher
, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) (citing Cain v.
Banka
, 932 So. 2d 575 (Fla. 5th DCA 2006); Sunny Isles Marina, Inc. v.
Adulami,
706 So. 2d 920 (Fla. 3d DCA 1998)). To be effective, the wording of
such clauses must be so clear and understandable that an ordinary and
knowledgeable person will know what he or she is contracting away. Raveson v.
Walt Disney World Co.
, 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001) (citing
Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590, 591 (Fla. 5th DCA
1998)). Here, the release is not clear that negligence of the sort here was
intended to be within the scope of the release.
REVERSED AND REMANDED. (TORPY, C.J., LAWSON and WALLIS, JJ., concur.)

* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Insurance — Automobile — Insurer who filed a claim under her automobile insurance policy after her vehicle was damaged in an accident sued insurer claiming breach of policy after insured declared the vehicle a total loss and paid her what it deemed the actual cash value of vehicle — Breach of contract — Insurer was entitled to summary judgment on claim that insurer breached the policy by using an illegal methodology to calculate actual cash value — District court did not err in ruling insurer’s methodology for calculating actual cash value complied with Florida law — As matter of first impression, Section 626.9743(5), Florida Statutes, which provides that, in calculating “actual cash value” of insured’s vehicle based on actual cost to purchase comparable motor vehicle “derived from … two or more comparable motor vehicles available [in local market area] within the preceding 90 days,” did not require that “actual cash value” equal actual cost to purchase comparable vehicle — Insurer’s use of the Uniform Condition Adjustment, advertised prices of comparable motor vehicles, and the Certified Collateral Corporation ONE Market Valuation system to calculate the actual cash value of insured’s vehicle complied with Florida statute — Statute did not require that insurer use “retail cost as determined from generally recognized motor vehicle industry source” if it utilized one of other two statutory alternative methods for determining cost to purchase comparable motor vehicle — Insurer was entitled to summary judgment on claim that it breached the policy by failing to pay, as part of vehicle’s actual cash value, dealer fees incurred in purchasing replacement vehicle — Insurer was not required to pay insured’s out-of-pocket dealer fees — Under Florida and Eleventh Circuit law, “actual cash value” in an insurance policy means replacement cost less depreciation, and replacement cost includes dealer fees if the policyholder is reasonably likely to need to incur dealer fees — Insured failed to satisfy the standard for inclusion of dealer fees in replacement cost where insured showed a reasonable likelihood that she would incur dealer fees if she chose to purchase her replacement vehicle from a dealer and that a policyholder is reasonably likely to purchase a replacement vehicle from a dealer, but failed to show that a policyholder is reasonably likely to need to purchase a replacement vehicle from a dealer
  • Torts — Punitive damages — Amendment of complaint — Action alleging that vibration from defendant’s installation of sheet piles during construction on its parcel caused damage to plaintiff’s building — Trial court erred in granting plaintiff’s motion to amend its complaint to assert a claim for punitive damages based on allegation of gross negligence where plaintiff did not make required evidentiary showing to support such a claim — Report produced by third-party contractor warning defendant against the use of large vibratory compaction equipment in construction project, when read together with contractor’s deposition testimony, offered no evidentiary support for plaintiff’s claim that contractor warned defendant against using vibratory equipment in installation of sheet piles — Plaintiff’s expert’s affidavit, which drew illogical conclusions from contractor’s report, offered no support for gross negligence claim
  • Torts — Premises liability — Malls — Dangerous condition — Landscaping features — Vicarious liability — Action against operator of mall arising from injuries plaintiff suffered after stepping into a hole or depression in a raised landscape area which separated mall’s parking lot from the sidewalk that led to mall’s entrance — No error in entering summary judgment in favor of defendant because, as a matter of law, the landscaped area was not a dangerous condition — Evidence that a few people had walked across the landscaped area to get to the sidewalk was not sufficient to create a duty where there was no evidence that the grass bed had become a well-trampled footpath or that the grass bed has been in continuous and obvious use as a pedestrian shortcut such that defendant was put on constructive notice of the condition — Defendant cannot be held vicariously liable for condition created by landscapers where landscapers were not found liable
  • Torts — Automobile accident — Permanent injury — Causation — Trial court improperly directed verdict on causation given conflicting evidence which would have permitted reasonable jury to conclude that plaintiff had a pre-existing back injury caused by weight training or prior participation in competitive crew rowing
  • Insurance — Homeowners — Coverage — Vandalism — Trial court erred by denying insurer’s motion for directed verdict where policy limited coverage to insured’s “residence premises,” and insured did not “reside” at the property at the time of loss — Fact that insured was no longer leasing the property and was intending to move back when property was vandalized does not alter analysis

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2023 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Employment Claims and Appeals Since 1982