40 Fla. L.
Weekly D2279aTop of Form

Torts
— Negligence — Releases — Exculpatory clause — Post-claim release — Waiver
of liability signed by participant in paintball tournament on day tournament
began clearly focused the signatory on paintball competition, not vendor area,
and did not unambiguously release property owner from liability for injury
sustained by plaintiff two days before he signed release as he was walking
through vendor area associated with tournament — Trial court erred in granting
owner’s motion for summary judgment based on waiver — Evidence that plaintiff
was struck in head by balloon displaying vendor’s logo and tethered to tree
beside tent operated by defendant vendors and that a representative from tent
removed balloon from vendor area following accident and upon request of
plaintiff’s friend was sufficient to present issues of fact regarding vendors’
liability for positioning, securing, and maintaining offending balloon in a
condition safe to people accessing vendor area — Vendors failed to
sufficiently prove entitlement to summary judgment

OWEN PETERSON, Appellant, v. FLARE FITTINGS, INC., d/b/a CROSSFIRE, INC., CROSSFIRE,
PAINTBALL, INC. d/b/a CROSSFIRE, INC., and WALT DISNEY PARKS and RESORTS U.S.,
INC. d/b/a DISNEY’S WIDE WORLD OF SPORTS, WALT DISNEY WORLD CO., Appellees. 5th
District. Case No. 5D13-2235. Opinion filed October 9, 2015. Appeal from the
Circuit Court for Orange County, Walter J. Komanski, Judge. Counsel: Dineen
Pashoukos Wasylik, of DPW Legal, Tampa, for Appellant. Scot E. Samis, of Traub
Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellee, Flare
Fittings, Inc. John Ward Smith and Jon J. Hernand, of Seipp, Flick &
Hosley, LLP, Lake Mary, Douglas H. Stein, Stephanie Martinez and Nhan Lee, of
Seipp, Flick & Hosley, LLP, Miami, for Appellee, Walt Disney Parks and
Resorts U.S., Inc. Kara Berard Rockenbach and Kristi Bergemann Rothell, of Methe
& Rockenbach, P.A., West Palm Beach, and Andrew P. Rock and Lisa M.
Bernardini, of The Rock Law Group, P.A., Maitland, for Appellee, Crossfire
Paintball, Inc. d/b/a Crossfire, Inc.

(WALLIS, Judge.) Appellant, Owen Peterson, appeals orders granting summary
judgment for Appellees: Walt Disney Parks and Resorts U.S., Inc. (“Disney”);
Flare Fittings, Inc. (“Flare”); and Crossfire Paintball, Inc. d/b/a Crossfire
Inc. (“Crossfire”). Peterson argues that summary judgment for Disney, based
upon a waiver, was improper due to the ambiguities present in the document.
Peterson further argues that summary judgment for Flare and Crossfire was
improper because they failed to sufficiently prove their entitlement to relief
under Florida Rule of Civil Procedure 1.510(c). Because we find that granting
the Appellees summary judgment was improper, we reverse.

On November 8, 2006, Peterson arrived at the Wide World of Sports Complex
— a property owned by Disney — for the 2006 PSP Orlando World Cup (the
“Event”), hosted by Paintball Sports Promotions, LLC (“PSP”), from November 7
to 12. Disney stated that the Event consisted primarily of a paintball
tournament, but that it also “served as a trade show where vendors set up
booths outdoors to advertise and sell paintball-related items to participants
and spectators.” Peterson was not scheduled to compete in the games until
November 10.

Peterson alleged that, while walking through the vendor area on November
8, he was injured when a balloon labelled with Crossfire’s corporate logo made
contact with his head. Peterson described the balloon as 10 feet in diameter,
tethered to a tree beside a tent operated by Flare or Crossfire, and flying
between 70 to 100 feet in the air. Peterson claimed that the impact from the
balloon buckled his knees, knocked his sunglasses from his head, and left him
immediately dazed and in pain. Peterson speculated that a gust of wind may have
blown the balloon towards the ground, but admitted uncertainty about the exact
cause of the balloon’s sudden descent. Peterson testified that two of his
friends witnessed the balloon hitting his head and that, immediately after the
incident, a third friend approached the tent to notify the staff of the
incident and tell them to bring down the balloon. After the staff complied with
the request, Peterson reported the incident to a Disney manager, who allegedly
assured him that Disney would pay for his bills and told him to go to the
hospital to “get [himself] checked out.” Later that day, Peterson sought
medical treatment at a hospital and, after negative X-ray results, was
discharged with prescribed muscle relaxants and pain relievers.

On November 10, 2006, Peterson returned to the Wide World of Sports
Complex to compete in the paintball competition. Before participating in the
games, Peterson was required to sign the “Disney Sports Waiver and Permission
Form” (the “Waiver”). The Waiver identified PSP as the “Event Host” and defined
the “Sport Type(s)” as “Paintball and any other activities conducted at or in
conjunction with the Event.”

The relevant exculpatory clause of the Waiver states:

In
consideration of my and/or my child or ward’s participation in the Sport
Type(s) and Event referenced above and any related activities (collectively,
the “Event”), wherever the Event may occur, I agree to assume all risks
incidental to such participation (which risks may include, among other things,
muscle injuries and broken bones), on my own and/or my child or ward’s behalf,
and on behalf of my and/or my child or ward’s heirs executors, administrators
and next of kin, I hereby release, covenant not to sue, and forever discharge
the Released Parties of and from all liabilities, claims, actions, damages,
costs or expenses of any nature arising out of or in any way connected with my
or my child or ward’s participation in the Event and/or any such activities,
and further agree to indemnify and hold each of the Released Parties harmless
from and against any and all such liabilities, claims, actions, damages, costs
or expenses including, but not limited to, all attorneys’ fees and
disbursements up through and including any appeal. I understand this release
and indemnity includes any claims based on the negligence, action or inaction
of any of the Released Parties and covers bodily injury (including death),
property damage, and loss by theft or otherwise, whether suffered by me or my
child or ward either before, during or after such participation. I declare
that I and (if participating) my child or ward are physically fit and have the
skill level required to participate in the Event and/or any such activities. I
further authorize medical treatment for me and/or my child or ward, at my cost,
if the need arises.

(emphasis added).

Peterson read the Waiver, understood that his signature declared his fitness
to play paintball, and then signed the Waiver.1 Peterson’s team was eliminated from the
competition on November 10, and Peterson returned to his home in Virginia on
November 12.

On November 5, 2010, Peterson filed the Complaint against Flare,
Crossfire, and Disney for injuries allegedly sustained from the balloon impact.
Count I of the Complaint, against Flare, alleged that Flare negligently created
a “dangerous condition” at the vendor tent. Count II alleged substantially
identical claims against Crossfire. Counts III and V, against Disney, alleged
general negligence claims and allegations that Disney failed to control the
Event on its property.2 In February 2011, Flare, Crossfire, and Disney
responded with answers and affirmative defenses, generally denying liability.
Two years later, Disney added an affirmative defense that Peterson’s execution
of the Waiver, “expressly waiving and releasing all claims and agreeing to
indemnify [Disney],” barred his claims against Disney.

On February 28, 2013, Disney filed a Motion for Final Summary Judgment and
Supporting Memorandum of Law, arguing solely that it was entitled to summary
judgment as a result of Peterson signing the Waiver. On April 2, 2013, Flare
filed a Motion for Summary Judgment and Incorporated Memorandum of Law. Flare
argued that Peterson failed to carry his initial burden of proving negligence
because the record contained no evidence that it or any related party: (1) had
a duty to maintain the Event area; (2) caused a dangerous condition on the
premises; (3) failed to maintain the premises; (4) failed to inspect the
premises; (5) failed to provide adequate staff; (6) failed to adequately train
its employees; or (7) failed to act reasonably. On April 16, 2013, Crossfire
filed a Motion for Summary Judgment and Incorporated Memorandum of Law.
Crossfire also argued that Peterson failed to introduce summary judgment
evidence to establish that Crossfire had breached any duty resulting in injury.

Peterson filed brief pro se responses to Appellees’ motions for summary
judgment, contesting the validity of the Waiver as a post-claim release of
Disney’s liability — signed after the actionable injury occurred — and
generally alleging that Crossfire and Flare had not met their respective evidentiary
burdens to justify the granting of summary judgment. The only applicable
summary judgment evidence before the trial court at the time of the hearing on
the motions was Peterson’s deposition, taken on February 16, 2012, and May 8,
2012. The lower court ultimately granted all three motions for summary
judgment.3

“Summary judgment is proper if there is no genuine issue of material fact
and if the moving party is entitled to a judgment as a matter of law.” Volusia
Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)
(citing Menendez v. Palms W. Condo. Ass’n, 736 So. 2d 58 (Fla. 1st DCA
1999)). “Thus, our standard of review is de novo.” Id.

We first turn to Disney’s argument that the Waiver’s exculpatory clause
released Disney from any liability for Peterson’s injury. We note generally
that “exculpatory clause[s] purport[ ] to deny an injured party the right to
recover damages from a person negligently causing his injury.” Cain v. Banka,
932 So. 2d 575, 578 (Fla. 5th DCA 2006) (citing Kitchens of the Oceans, Inc.
v. McGladrey & Pullen, LLP, 832 So. 2d 270 (Fla. 4th DCA 2002)). These
clauses are “disfavored in the law because they relieve one party of the
obligation to use due care and shift the risk of injury to the party who is
probably the least equipped to take the necessary precautions to avoid injury
and bear the risk of loss.” Appelgate v. Cable Water Ski, L.C., 974 So.
2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So. 2d at 578). Such
clauses are “strictly construed against the party seeking to be relieved of
liability.” Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920, 922
(Fla. 3d DCA 1998).

[E]xculpatory
clauses are enforceable only where and to the extent that the intention to be
relieved from liability is made clear and unequivocal. The wording must be so
clear and understandable that an ordinary and knowledgeable person will know
what he is contracting away. A phrase in a contract is ambiguous when it is of
uncertain meaning, and thus may be fairly understood in more ways than one.

Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th
DCA 2009) (citations omitted). Unlike a pre-claim exculpatory clause, which
requires specific language because of the uncertainty of future events,
consideration for a post-claim release — at issue in this case — arises from
the parties’ awareness “of the circumstances related to the injury and the
injured party can reasonably be held accountable for fully appreciating the
implications of a general release.” Abis v. Tudin, D.V.M., P.A., 18 So.
3d 666, 669 (Fla. 2d DCA 2009). No awareness or accountability occurred here.

Our analysis of this post-claim release must evaluate whether both parties
knowingly gave clear and valid consideration in the Waiver. The Waiver
specifically stated, “In consideration of my and/or my child or ward’s
participation in the Sport Type(s) and Event referenced above and any related
activities (collectively, the ‘Event’), wherever the Event may occur, I agree
to assume all risks incidental to such participation.” The Waiver further
notified the “Participant” that by signing the Waiver he declared himself
“physically fit” and possessing “the skill level required to participate in the
Event and/or any such activities.” This language clearly focused the signatory
on the paintball competition, not the vendor area. The parties further admitted
that Disney did not require people accessing only the vendor area to sign the
Waiver.

We reject Disney’s argument that the Waiver’s reference to injuries
suffered “before, during or after such participation” included the November 8
incident. The Waiver failed to clarify that it included any incident that
occurred before its signing, and thus failed to notify Peterson of a post-claim
release.

We next turn our attention to Flare and Crossfire. We recognize that a
party seeking summary judgment must meet a high burden of proof to justify relief,
as clearly stated in Metsker v. Carefree/Scott Fetzer Co., 90 So. 3d
973, 977 (Fla. 2d DCA 2012):

(citations omitted). Crossfire argues that Peterson’s case, based on his
own deposition testimony, was “built entirely on assumption, speculation, and
conjecture” and, thus, insufficient to defeat Crossfire’s and Flare’s motions
for summary judgment. However, Crossfire and Flare have ignored the burden of
proof that accompanied their motions for summary judgment. Specifically,
“summary judgment may properly be granted in negligence cases only where the
moving party has successfully met his burden of proving the absence of a
genuine issue of material fact.” McCabe v. Walt Disney World Co., 350
So. 2d 814, 815 (Fla. 4th DCA 1977) (citing Holl v. Talcott, 191 So. 2d
40 (Fla. 1966); Grall v. Risden, 167 So. 2d 610 (Fla. 2d DCA 1964)).
Summary judgment is improper “even where there is no conflict in the evidence,
provided that inferences reasonably deducible therefrom cast doubt upon
material issues.” McCabe, 350 So. 2d at 815. Crossfire correctly notes
that Peterson presented very little evidence demonstrating a dangerous
condition at the Event or a duty owed by Crossfire. However, Peterson provided
evidence that the offending balloon displayed Crossfire’s logo and was tethered
to a tree located near a tent operated by Flare or Crossfire. Further, Peterson
provided testimony that, following the accident and upon request by Peterson’s
friend, a representative from the tent removed the balloon from the vendor
area. This evidence presented issues of fact regarding Flare’s and Crossfire’s
liability for positioning, securing, and maintaining the offending balloon in a
condition safe for people accessing the vendor area.

The lack of convincing evidence in favor of a party opposing summary
judgment is not the same as conclusive evidence in favor of the party seeking
summary judgment. Although the evidence in support of Peterson’s case is
tenuous, Flare and Crossfire failed to meet the “high burden” of demonstrating
that Peterson “cannot prevail.” See Lake Sue Dev. Co., Inc. v. Keewin
Real Prop. Co., 950 So. 2d 1280, 1282 n.3 (Fla. 5th DCA 2007). Both Flare
and Crossfire neglected to present any summary judgment evidence establishing a
lack of liability on their part, choosing to simply allege that Peterson’s evidence
was insufficient to prevail on the merits. Accordingly, the lower court erred
by granting summary judgment in favor of Disney, Flare, and Crossfire.

REVERSED and REMANDED. (EVANDER, J., and HERNDON, L.D., Associate Judge,
concur.)

__________________

1Although Peterson alleged that he did not sign the Waiver until November
10, the document bears his signature with a date of November 9, 2006.

2The Complaint erroneously listed the fourth count, against Disney, as
“Count V,” and included a second Count V against Lane Wright, organizer of the
Event. The count against Wright is not pertinent to this appeal.

3No transcript of the hearing appears in the record. It is unclear whether
Peterson, or any attorney representing him, was present at the hearing. Neither
the minutes of the hearing nor the orders granting summary judgment provide any
findings of fact or conclusions of law to support granting summary judgment for
Appellees.