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

By Doyice Cotten

2411281120_2f3f164d2cIn 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, 2013 Fla. App. LEXIS 12797).  

The case involved the death of a University of Central Florida football player who died during a conditioning drill. UCF claimed protection based on a waiver included on the Medical Examination and Authorization Waiver.  The trial court ruled that the waiver was inadmissible and the issue before the appellate court was whether the waiver relieved UCF of liability for negligence.

The waiver read:

I am aware that playing, practicing, training, and/or other involvement in any sport can be a dangerous activity involving MANY RISKS OF INJURY, including, but not limited to the potential for catastrophic injury. I understand that the dangers and risks of playing, practicing, or training in any athletic activity include, but are not limited to, death, serious neck and spinal injuries which may result in complete or partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforementioned dangers of participating in any athletic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest. I also understand that there are risks involved with traveling in connection with intercollegiate athletics.

In consideration of the University of Central Florida Athletic Association, Inc. permitting me to participate in intercollegiate athletics and to engage in all activities and travel related to my sport, I hereby voluntarily assume all risks associated with participation and agree to exonerate, save harmless and release the University of Central Florida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Florida Athletic Association’s athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with my participation in any activities related to intercollegiate athletics.

The terms hereof shall serve as release and assumption of risk for my heirs, estate, executor, administrator, assignees, and all members of my family.

Florida waiver law was summarized as follows:

  • 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 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.”
  • A phrase in a contract is ambiguous when it is of uncertain meaning and may be fairly understood in more than one way.

The primary issue revolved around whether the waiver had to include the term “negligence” to be enforceable. While the 5th District Court plainly ruled in Give Kids the World v. Sanislo that the language was broad enough to encompass negligence even though the term “negligence” was not included, the same court found a problem with the UCF waiver.

Here the UCFAA waiver immediately preceded the broad waiver language with a paragraph outlining the risks inherent in any sport and then stated:

Because of the aforementioned dangers of participating in any athletic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest.

The court noted that not only did the waiver not expressly state that Plancher was waiving negligence acts, but could have easily led Plancher to believe that he was only releasing liability for injury due to risks inherent in the sport.  Hence, the appellate court agreed with the trial court determination that the waiver was ambiguous and unenforceable.

Risk Management Take-Away

This case reinforces the author’s regular admonition: The waiver should clearly state that the waiver releases the provider from liability for injury caused by the ordinary negligence of the provider. This recommendation holds true in every state.

Photo Credit: Thanks to PhilyFn at http://www.flickr.com/photos/philyfn/2411281120/sizes/m/in/photolist-4F5rSq-7bdRVW-7ba4ct-7ba4kR-7bdRHb-5HsRKE-37MvZQ-4F5rFL-rFBDN-8iXVJT-8iXVmV-8j2abd-8iXUGn-8iXV5a-8j2aRC-8iXWkc-8iXV74-8iXWCr-8j29uy-8iXVsM-8j29By-8j2bCm-8iXWog-8iXWZe-8j2a7h-8j2bhE-8iXWaH-8iXWRe-8iXVui-8iXW2a-8j2b9J-8iXWNn-8j29MJ-8iXVFv-8j2azG-8iXX3i-8j2a47-8j29xo-8iXUDB-8iXVrx-8iXWF4-8j2aPu-8iXWd4-8iXUJH-7fSvLF-7fWp3y-7fSHJD-7fWyGj-7fWu6u-7fSs2c-7fWCnf/.