By Doyice Cotten
When discussing liability waivers, the question often arises “Does the waiver have to include the term ‘negligence’ or ‘neglect’ in order to protect against liability for negligent acts by the provider?” The answer actually varies depending upon the state involved. Courts in more than 20 states either require the terms or strongly encourage their use. Florida is one state in which more is involved; there are five appellate court districts and four of the five require such language. The Fifth District Court of Appeals, however, rejects the need for such language. Below is a brief summary of some of the case law addressing the issue. (Cites are given for those who want to know more about the cases.)
1st District Court of Appeals
In a non-sport case (Levine v. A.Madley Corporation, 1987 Fla. App. LEXIS 11697) involving a polygraph, the court stated that for a waiver to be enforced “…it had to have clearly stated that it released the party from liability for its own negligence.”
2nd District Court of Appeals
In a case involving a person injured in a YMCA activity (Murphy v. Young Men’s Christian Association of Lake Wales, 2008 Fla. App. LEXIS 2035), the court stated the waiver was not enforceable because it “…does not specifically state that the YMCA is not liable for “any claims based on negligence.” It went on to say that a waiver “…must clearly state that it releases the party from liability for his own negligence.”
In an older case involving a child attending a camp (Goyings v. The Jack and Ruth Eckerd Foundation, 403 So.2d 1144 (Fla. App., 1981)), the court stated “… to be effective, however it must clearly state that it releases the party from liability for his own negligence.”
3rd District Court of Appeals
In Cook v. Crazy Boat of Key West, Inc. (2007 Fla. App. LEXIS 3303), a client signed a waiver in order to ride a crazy boat. The court held the “release is ambiguous and does not contain the word ‘negligence.’”
Likewise, in a non-sport case involving a home fire (Tout v. Hartford Accident & Indemnity Company, 1980 Fla. App. LEXIS 18102), the court said “A limitation of liability for one’s negligent acts cannot be inferred unless such intention is expressed in unequivocal terms.”
In another 3rd District case (Lovas v. Dolphin Research Center, Inc., 1991 Fla. App. LEXIS 5135), a waiver used by a dolphin center was found to be unenforceable. The court stated that “Since there is no specific reference in the releases to ‘negligence’ at all, it is … no defense to the negligence claim….”
4th District Court of Appeals
In Cousins Club Corp. v. Silva (2004 Fla. App. LEXIS 4596), a boxing waiver was not enforced because it “…did not clearly and unequivocally release Club Boca from liability….”
Similarly, the court in Van Tuyn v. Zurich American Insurance Co. (447 So.2d 318 (Fla. App. 4 Dist. 1984)) held that a waiver used for mechanical bull riders was not enforceable. It stated that waivers “…must clearly state that it releases the party from liability for its own negligence.”
5th District Court of Appeals
In contrast to Districts One through Four, District Five have long held that waivers need not include the words “negligence,” “neglect,” or similar words to be enforceable. Most recently, in Give Kids the World, Inc., v. Sanislo (2012 Fla. App. LEXIS 17750), the court expressly “rejected the need for express language referring to release of the defendant for ‘negligence’ or ‘negligent acts’ in order to render a release effective to bar a negligence action.”
In Cain v. Banka (2006 Fla. App. LEXIS 10794), the court noted that an exculpatory clause absolving a defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to encompass the plaintiff’s negligence action filed against a defendant track owner in connection with motocross bike riding. Likewise, in a non-sport case (Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436, 437 (Fla. 5th DCA 1990), the court declared that “any and all claims, demands, damages, actions, causes of action, or suits in equity, of whatsoever kind or nature” encompassed negligent action.
Summary and Recommendation
A concurring judge (Judge Cohen) in the Give Kids the World, Inc. v. Sanislo case stated that he felt
“The better view is to require an explicit provision to that effect. Exculpatory clauses are “by public policy 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 injury and bear the risk of loss.” (Tatman v. Space Coast Kennel Club, Inc., 27 So3d 108, 110 (Fla. 5th DCA 2009)). While those trained in the law might understand and appreciate that the general language releasing a party from any and all liability could encompass the injuries suffered by Ms. Sanislo, a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood. The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same. [Emphasis added.]
The author agrees with Judge Cohen and feels that any waiver that includes a reference to the term “negligence” or “neglect” is less likely to be declared to be ambiguous and unenforceable. In fact,
1) the author recommends that the language specify the “ordinary negligence of the provider.”
2) Further, the author recommends that the language should be used in all waivers, regardless of the state involved. The intent of waivers with this language will be clearer and less likely to be declared ambiguous.
 The list of states in which the terms “negligence” or “neglect” are required or strongly recommended can be found in Cotten and Cotten, Waivers & Releases of Liability, 8th ed.