Ambiguous Waiver Fails to Protect University in Florida Wrongful Death Case

By Doyice Cotten

In this wrongful death case,  Nicholas Blakely, a football player at Stetson University,  died and his estate entered a wrongful death suit. (The Estate of Nicholas Adam Blakely v. Stetson University, Inc., 2022)

At a practice,

Blakely pulled himself out of an afternoon football practice on August 28, 2017, complaining to an assistant athletic trainer that he was feeling dizzy and that his chest felt tight. The assistant athletic trainer took Blakely to the sideline, took his pulse,1 gave him water to cool down, removed his helmet, loosened his shoulder pads, and had him stand in the shade. Trainers continued to monitor Blakely’s symptoms. However, after resting on the sideline for approximately forty to forty-five minutes, Blakely collapsed.

In addition to calling 911, Stetson employees attempted various emergency medical procedures in an unsuccessful effort to revive Blakely. Blakely was transported to the hospital, where he ultimately died.

There was record evidence that during an April 2017 practice, Blakely had complained to an assistant athletic director of chest pain. He also advised the trainer that he had experienced one or two incidents of chest pain in high school, but both of those incidents had resolved quickly. The chest pain incident of April 2017 also resolved in just a few minutes. The assistant athletic trainer did not document the April incident or otherwise do anything with the information provided by Blakely.

Stetson did not have him undergo a physical examination prior to him participating on the football team for the upcoming season.

There is also record evidence that on the morning of August 28, 2017, the day Blakely died, Blakely advised the head football athletic trainer that he was not feeling well, that he had a bad cough, chest congestion, and shallow breathing. The trainer took Blakely’s temperature which was negative for fever. The trainer believed Blakely had a cold and did not refer him to the student health clinic. Blakely was permitted to continue participation in the planned activities for the day without restriction.

Waivers

Two waivers had been signed by Blakely and the circuit court granted summary judgment based on the waivers. This case is the result of an appeal by the plaintiff.

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, serious neck injury, serious spinal cord injury, which may result in complete or partial paralysis, brain damage, serious injury to virtually all internal organs, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, serious injury or eye impairment, and serious injury to other aspects of my body, general health and well-being. I understand that the dangers and risks of playing or participating/practicing in the Stetson University Athletic Department programs may result not only In serious injury, but in a serious impairment of my future abilities to earn a living, to engage in other business, social, and recreational activities, and generally to enjoy life.

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.

In consideration of Stetson University permitting me to play/participate for Stetson University intercollegiate athletics in all activities related to the team, including, but not limited to: trying out, practicing, playing/participating or team travel in that sport, 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.

The terms hereof shall serve as a complete release and waiver of liability for myself, my heirs, estate, executor, administrator assignees, and for all members of my family. (emphasis added).

Florida Waiver Law

In part,Florida waiver law reads:

“An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. They 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.” UCF Athletics Ass’n, v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) [emphasis added.]

In interpreting the waiver, the court said a waiver might sometimes be enforceable “… despite the absence of expressed language referring to the release of the defendant for its own negligence.”  However, it went on to add that two statements in the waiver influenced their ruling.  First,  the court pointed to a statement just before the waiver which said , “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 would suggest that the university “would be supervising his training and instructing him properly (non-negligently)”. So, he would be agreeing to the injuries due to the inherent risks of the sport. The second sentence that bothered the court was the final two sentences of the releases state that the releases serve as a release “for myself,” not “by” myself; thus, the meaning of the sentence is unclear.

Since the waiver was not clear and unambiguous, the appellate court overturned the summary judgement and sent it back for further action.

Risk Management Take-Aways

The biggest take-away from this case is that one should be certain the waiver is saying what it is supposed to. The main purpose of the waiver is to relieve the service provider of their liability for injuries caused by their own negligence. It is easy to put such language in the waiver. They did not do that here and it proves costly.  It is best to not “try to hide the ball” from the signer of the waiver.

Photo Credit

Thanks to Neon Tommy via Flickr.