Utilize the “Negligence of the Provider” — But Address Negligence Risks and Inherent Risks Separately

2411281120_2f3f164d2cBy Doyice Cotten

On countless occasions, this author has stressed two points. First, is the value (or even necessity) of including specific reference to the “negligence of the provider” in the exculpatory language of a waiver. In many states, the term is mandated in order for a waiver to be enforced; in others, it is strongly recommended. Alternately, in some states, general language such as “any and all claims” is sufficient. In Florida, four of its Districts require the use of the term “negligence.” In its 5th District (the district hearing this case), the term is not necessary, so long as the language makes it clear that the signer is contracting away the right to sue. This case clearly illustrates why the use of the term “negligence” is important in reducing ambiguity even in jurisdictions in which “negligence” isn’t required.

The second point that has been emphasized often is the importance of uncoupling inherent risks from the risk of negligence. Reference to these two should be separated so that it is clear that the signer is waiving both the inherent risks and the negligence of the provider. Separation could be through use of a subheading, by requiring a signature for each, or by some other method. In the case below, having them in separate paragraphs proved to be inadequate.

Ereck Plancher, II, a University of Central Florida (UCF) football player, collapsed and died during football practice after participating in a series of conditioning drills. His parents filed a negligence action against UCF and its athletic association (UCFAA) (UCF Athletics Association Inc. v. Plancher, 2013 Fla. App. LEXIS 12805).

Note that in the following waiver, the first paragraph deals with inherent risks of football. The second paragraph contains the exculpatory language, by which UCF and UCFAA attempt to gain immunity from liability.


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. . . .  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.

UCFAA pled the waiver as an affirmative defense and moved for summary judgment. The trial court denied UCFAA’s motion finding that “there exists a legitimate disputed fact as to whether the [Agreement] constituted an unequivocal and unambiguous release of liability.” Later, the trial court precluded UCFAA from raising the issue at trial, finding that the exculpatory clause was unenforceable as a matter of law.

Florida Law

Florida law states that a waiver

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 appellate court agreed with the trial court that the waiver at issue here did not expressly inform Ereck that he would be contracting away his right to sue UCFAA for its own negligence. Interestingly, the court stated that failure to have an express reference to “negligence,” alone, would be sufficient to render the clause unenforceable in any District in Florida other than the 5th District (the 5th District was hearing the case). The other districts in Florida require the use of the term “negligence” or something similar.

The court was concerned with the fact that immediately preceding the broad waiver language was a paragraph outlining the risks inherent in any sport, and stating:

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.

This language, when considered with a clause that does not expressly state that Ereck would be waiving a negligence action, could have easily “led Ereck to believe that UCFAA 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….”

UCFAA argued that there should be no confusion because the two provisions are in separate paragraphs; however, the appellate court held that when read together, the provisions underscoring the importance of following UCFAA’s rules and the risk of an accident regardless of whether the proper rules and techniques are followed, comes before the exculpatory clause, which could result in the signer thinking he was releasing UCFAA from liability for only the inherent risks.

So, in this case (in a District that does not require the use of the term “negligence” in the waiver) the failure to use the term created sufficient ambiguity to result in the failure of the waiver to protect the defendants.

Photo Credit: Thanks to PhilyFn at  Flickr.