Tag Archives: Florida

Florida Waiver Law for Minors

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By Doyice Cotten

The Florida Supreme Court (Kirton v. Fields, 2008) has ruled that parental waivers designed to protect commercial entities from liability for negligence are not enforceable. Florida appellate courts, however, have enforced parental waivers when used by schools or recreational entities (Krathen v. School Board of Monroe Country, Fla., 2007; Gonzalez v. City of Coral Gables, 2004).

In 2013, the Florida Legislature passed F.S.

A Tale of Two Florida Water Sport Waivers

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By Doyice Cotten
When I travel, I make it a habit to pick up liability waivers wherever I go. On a recent trip to Florida I visited a number of water sport businesses. Of the waivers I obtained, I would like to compare two. To protect the innocent, I will call one Oops Watersports and the other OK Watersports. The Oops agreement is primarily an equipment rental agreement; the OK agreement is a full-fledged, full page waiver agreement. The reader is invited to compare the two agreements and see which would allow him or her,

Sport Safety Statutes Can Affect the Effectiveness of Liability Waivers

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By Doyice Cotten

Most states have enacted at least one of what are sometimes called sport safety acts or shared responsibility statutes (e.g., equine, ski, whitewater rafting) intended to define or limit the liability exposure of operators of selected activities.

Some of these statutes hold the operator to a duty of ordinary care. When they do, a waiver cannot protect the operator in the event of ordinary negligence. Other statutes prescribe a list of specific duties of the operator.

Florida Supreme Court Rules on the Need to Include “Negligence” Language in Liability Waivers

By Doyice Cotten

For some time, the appellate courts in Florida have disagreed as to whether a waiver must include the term “negligence,” “negligent acts,” or similar language in order to be enforceable. In Sanislo v. Give Kids the World, Inc. (2015 Fla. LEXIS 214), the Supreme Court of Florida ruled the use of the word “negligence” is not required. The decision came in a close 4 to 3 verdict.

The Fifth District Court of Appeals had “held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts.” The First,

Include the Word ”Negligence” in the Waiver

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By Doyice Cotten

Again and again I have written about the advisability of using the word “negligence” in your waiver. Actually, it is best to specify that the intent of the waiver is to relieve the provider of liability for the “negligence of the provider.”

Some waiver writers seem to be hesitant to use the actual word “negligence” – in fear, I suppose of, of scaring away patrons. In some states, of course, the word “negligence” is not required by the courts.

Utilize the “Negligence of the Provider” — But Address Negligence Risks and Inherent Risks Separately

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By Doyice Cotten

On countless occasions, this author has stressed two points. First, is the value (or even necessity) of including specific reference to the “negligence of the provider” in the exculpatory language of a waiver. In many states, the term is mandated in order for a waiver to be enforced; in others, it is strongly recommended. Alternately, in some states, general language such as “any and all claims” is sufficient. In Florida, four of its Districts require the use of the term “negligence.” In its 5th District (the district hearing this case),

Update on Whether the Word “Negligence” is Required in Florida Waivers

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By Doyice Cotten

In a November, 2012 post, Florida Waiver Law: Must the Waiver Include the Term “Negligence?”, we learned that for a waiver to be enforceable, the term “negligence,” or its equivalent must be included in a waiver in all Florida districts except the 5th. In an August 16, 2013, case, the Fifth District Court of Appeals provided more information regarding Florida law (UCF Athletics Association, Inc. v. Plancher,

Risk Management: Vetting Your Independent Contractor

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By Doyice Cotten

The general rule is that a business entity is liable for injuries resulting from the negligence of the business or its employees. The business, however, is not generally liable for injuries caused by the negligence of independent contractors working.

Nevertheless, the business entity does have an important duty in regard to engaging an independent contractor – the duty to take care and do due diligence in the hiring (and retention) of the independent contractor.

“Management will not be Responsible for Accidents” Does NOT Protect in Florida Case

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By Doyice Cotten

A guest at Grand Seas Resort was injured when his chair collapsed on the patio. He sued alleging negligence and the Resort claimed protection from its exculpatory clause in the “guest license agreement.” The entire exculpatory language was “Management . . . will not be responsible for accidents or injury to guest . . . .” (Hackett v. Grand Seas Resort Owner’s Association, Inc., 2012 Fla. App. LEXIS 10111)

The trial court granted summary judgment,

Waiver Should Specify What Action is Being Released!

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By Doyice Cotten

A lot rides on a liability waiver; they often determine whether the provider wins or loses a negligence suit. It is important enough that the waiver creator should take care to make certain that the waiver clearly defines the intent of the document. The following two cases clearly illustrate the importance of clarity of language. Note the brevity of the exculpatory language in each case.

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In Hackett v.