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, however, the appellate court held that the exculpatory language was too ambiguous to protect against negligence. It cited the term “accident” and held that the term did not equate to negligence. The court stated that “we ought not to be hidebound by requiring the use of a specific word like “negligent,” but should look to language clearly indicating that one is giving up specific defined rights. It added that “Better practice is probably to use the words “negligent” or negligence” in drafting an exculpatory clause.”

In addition, it stated that “Management” does not adequately identify who is seeking protection.

Thus, (1) failure to clearly indicate what rights are being waived and (2) failure to name or identify the protected entity resulted in a ruling for the plaintiff. Summary judgment was reversed and the case was remanded for further proceedings. Here, again, a poorly drafted exculpatory agreement results in liability for the resort.

Photo Credit: Thanks to Theme Park Mom at http://www.flickr.com/photos/themeparkmom/5096520512/sizes/n/.