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
For purposes of clarification, we withdraw our prior opinion and substitute this
opinion in its place.
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.
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
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
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.
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.
* * *