By Doyice Cotten

Nicholas Blakely played varsity football for Stetson University. One day, he removed himself from practice complaining that he did not feel well. He was examined by a student trainer and told to stay in the shade. After about 45 minutes he collapsed and died later after being transported to the hospital.

Suit against Stetson led to the trial court granting a summary judgment to Stetson based on two identical waivers of liability signed by Blakely.  The court ruled that the waivers “were sufficiently clear to bar claims brought against Stetson arising from Blakely’s cardiac death after participating in a football practice.”  Plaintiffs appealed raising two issues, the first of which will be examined here. The appeal contended “that the language in the releases was insufficient to be enforceable as a matter of law.”

It is worthy of note that in Blakely’s two years on the team, he had complained of similar symptoms (he was feeling dizzy and that his chest felt tight) a number of times. The athlete did not see a physician at any point and did not have to undergo a physical at the opening of the latest season. Also, earlier on the day he died, he had advised the head football athletic trainer that he was not feeling well, that he had a bad cough, chest congestion, and shallow breathing.

 The Waiver Language

The waiver he signed contained the following pertinent language:

I am aware that playing or practicing to play/participate in any sport can be a dangerous activity involving many risks of injury. I understand that the dangers and risks of playing or participating/practicing may include, but are not limited to: death, …

Because of the dangers and risks involved in participating in intercollegiate athletics, I recognize the importance of following the Coaches and Sports Medicine staff instructions regarding playing techniques, conditioning, rehabilitation/treatment recommendations and team rules, etc., and agree to obey such instructions.

 I hereby assume all risks associated with participation and agree to hold Stetson University, it’s [sic] trustees, administration, coaches, athletic trainers and athletic training interns from any and all liability, actions, causes of actions, debts, claims or demands of any kind or nature which may arise by or in connection with my participation in any activities related to the Stetson University athletic program. The terms hereof shall serve as a release and assumption of risk for myself, my heirs, estate, executor, administrator, assignees and for all members of my family. [bold added]

Stetson argued that the waivers signed by Blakely “clearly and unambiguously released Stetson from any and all liability arising from Blakely’s participation in Stetson football activities.” On the other hand, plaintiffs argued that “the releases did not mention negligence and contained contradictory and ambiguous provisions rendering the releases unenforceable. The trial court found that the releases were “clear and understandable so that an ordinary and knowledgeable person would know what is being contracted away” and “would be clear to even someone who is not an adult that executing them would release all claims.”

The Appellate Court

The appellate court discussed Florida waiver law stating:

• “A waiver purports to deny an injured party the right to recover damages from a person negligently causing his injury.
• Waivers 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 least equipped to take the necessary precautions to avoid the injury and bear the risk of loss.
• Such clauses are strictly construed against the party seeking to be relieved of liability. Thus, exculpatory 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.”

Regarding the present case, the appellate court affirmed that:

• the waiver did not expressly inform Blakely that by executing the document at issue, he would be contracting away his right to sue Stetson for Stetson’s own negligence.
• Although this omission does not, standing alone, render the exculpatory clause unenforceable, (Sanislo v. Give Kids the World, Inc. 2015), it is a factor for a court to consider in determining whether the exculpatory clause is clear and unambiguous.
• (“Despite our conclusion [that an exculpatory clause can be effective to bar a negligence action despite the absence of expressed language referring to the release of the defendant for its own negligence], we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions.”)

The court added that there are “at least two provisions which, combined with Stetson’s failure to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s negligence, render the exculpatory provision unclear and ambiguous.

• Blakely was advised that it was important that he comply with Stetson’s medical staff’s instructions regarding, inter alia, conditioning and treatment and, indeed, was required to obey such instructions. … this type of language, when coupled with a clause that does not expressly state that the athlete would be waiving a negligence action, could reasonably lead the athlete to believe that the university “would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport.”
• “Second, the final two sentences of the releasesstate that the releases serve as a release “for myself,” not “by” myself. Specifically, these sentences read, in relevant part: “[T]he terms hereof shall serve as a release and assumption of risk for myself …” and “The terms hereof shall serve as a complete release and waiver of liability for myself, ….” (emphasis added). As Wilson observes, the word “for” is defined to mean “used to indicate the person or thing that something is sent or given to.” In other words, the use of the word “for” can suggest that the terms of the release are for the benefit of Blakely, that is, if he follows the instructions of Stetson’s athletic department personnel and causes injury to another while participating in the dangerous activity of playing football, he is released from liability.

Ruling

Subsequently, the appellate court ruled that Stetson’s waiver:

“1) failed to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s own negligence,

2) used language that could reasonably lead one to believe that the university would be supervising and training properly so that he was only being asked to sign the exculpatory clause to cover injuries inherent in a sport, and

3) used language suggesting that the terms of the release were for Blakely’s benefit. The combination of these factors supports a determination that the exculpatory clause was not clear and unambiguous. As a result, we conclude that the exculpatory clause relied upon by Stetson is unenforceable and that the trial court erred in granting summary judgment in favor of Stetson.”

Risk Management Take-Away

Let me again emphasize that all liability waivers should clearly state that the signer is releasing the provider from liability for injuries or loss resulting from the NEGLIGENCE of the provider. No royalties are required for the use of the word “negligence.” It does not cost anything! To steal from Nike, Just say it!

Photo Credit: Thanks to  Jill Carlson   via Flickr.