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Stacy Sanislo v. Give Kids the World, Inc., Case No. SC12-2409 (Florida Supreme Court)

In Sanislo, the Florida Supreme Court approved of the Fifth District court's ruling that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to the release of the defendant for its own negligence or negligent acts. In doing so, the Florida Supreme Court disapproved of decisions out of the First, Second, Third and Fourth Districts.

Sanislo arose from a negligence action against the defendant non-profit organization, which provides free storybook vacations to seriously ill children and their families at its resort village. The plaintiff parents brought their seriously ill child to the village, where Ms. Sanislo sustained injuries. As part of the application process for the storybook vacation, the plaintiffs filled out and signed a wish request form, which contained language released the defendant from any liability for any potential cause of action. After the wish was granted, the plaintiffs arrived at the resort village, and again signed a liability release form. Following entry of judgment in the plaintiffs' favor after a jury trial, the Fifth District reversed the trial court's denial of the defendant's summary judgment motion, holding that an exculpatory clause releasing the defendant from liability for any and all claims and causes of action of every kind arising from "any and all physical or emotional injuries and/or damages which may happen to me/us" barred the negligence action despite the lack of a specific reference to "negligence" or "negligent acts" in the exculpatory clause. The remaining four district courts had previously held that exculpatory clauses are ineffective to bar a negligence action unless there is express language referring to release of the defendant for its own negligence or negligent acts. As such, the Florida Supreme Court was presented with a conflict over whether an exculpatory clause is ambiguous and thus ineffective to bar a negligence action due to the absence of express language releasing a party from its own negligence or negligent acts.

The Court noted that 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. Nonetheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. The Court further noted that the Fifth District held that exclupatory clauses are not ambiguous, equivocal and unenforceable to bar negligence actions simply because they do not contain express language referring to release of the defendant for negligence or negligent acts. The First, Second, Third and Fourth Districts had ruled to the contrary relying on the Florida Supreme Court's decision in University Plaza Shopping Center, Inc. v. Stewart.

The Court explained that University Plaza, however, dealt with an indemnity agreement, and the Court was unwilling to expand its holding in University Plaza to exculpatory clauses. The Court detailed its ruling in University Plaza and its progeny, noting that since 1973, indemnity agreements only indemnify the indemnitee for his or her own negligence if the agreement contains a specific provision protecting the indemnitee from liability caused by his or her own negligence. The Court found though that the principles underlying University Plaza do not apply to exculpatory clauses. Indemnification provisions afford the indemnified party to claim reimbursement for its actual loss, damage or liability from the responsible party. Indemnification serves the purpose of holding the indemnified party harmless by shifting the entire loss or damage to the responsible party when the indemnified party has without active negligence or fault become obligated to pay. An exculpatory clause, on the other hand, shifts the risk of injury and deprives one of the contracting parties of his or her right to recover damages suffered due to the negligent act of the other contracting party. The Court noted that Florida case law has long recognized a distinction between indemnification and exculpatory provisions.

The Court ruled that while the better practice is to expressly refer to negligence or negligent acts in exculpatory clauses, it would not hold that exculpatory clauses that are devoid of such terms are ineffective to bar a negligence action despite otherwise clear and unambiguous language indicating an intent to be relieved from liability in such circumstances. The Court reiterated, though, that exculpatory clauses are only unambiguous and enforceable where the language unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away.

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