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In Gillette v. All Pro Sports, LLC d/b/a Family Fun Town, 38 Fla. L. Weekly D2573a (Fla. 5th DCA December 6, 2013), the 5th DCA reversed the trial court's final summary judgment on behalf of the recreational facility. Summary judgment had been granted on the basis that a waiver and release form signed by Ms. Gillette precluded her negligence lawsuit against All Pro Sports, LLC d/b/a Family Fun Town (All Pro Sports).

Ms. Gillette sustained injuries after losing control of a go-kart and crashing into a railing at a facility run by All Pro Sports. Ms. Gillette subsequently filed a negligence action against All Pro Sports in which she alleged that an employee of All Pro Sports had negligently increased the speed of her go-kart during the race thereby causing her to lose control of the vehicle.

Ms. Gillette had signed a liability waiver prior to the accident. The waiver required Ms. Gillette to acknowledge that she could be injured by her own negligent driving or by the negligence of another driver and the release precluded Ms. Gillette from suing All Pro Sports as a result of any such negligence. The waiver did not discuss negligence on the part of All Pro Sports' employees.

All Pro Sports moved for summary judgment on the basis that the release signed by Ms. Gillette precluded her from bringing the lawsuit. The trial court granted the motion.

The 5th DCA reversed the trial court's summary judgment and held that waivers of liability must be strictly construed against the party seeking to avoid liability. The 5th DCA concluded that the liability waiver signed by Ms. Gillette did not preclude her lawsuit because the waiver did not specifically release any claims concerning the direct negligence of All Pro Sports' own employees.

 

 

This summary was prepared by Paul Tipton of our firm.


Paul Tipton

 

 


38 Fla. L. Weekly D2573a

 

Torts -- Releases -- Action against owner of Go-Kart track, alleging that defendant's employee negligently increased Go-Kart speed during a race, causing plaintiff to sustain injuries when she lost control and crashed into railing -- Error to enter summary judgment for defendant on basis of waiver and release form signed by plaintiff -- When considered in its totality, it is not clear that the negligence in question was intended to be within the scope of the release

CAROL ANN GILLETTE, Appellant, v. ALL PRO SPORTS, LLC., D/B/A FAMILY FUN TOWN, Appellee. 5th District. Case No. 5D12-1527. Opinion filed December 6, 2013. Appeal from the Circuit Court for Volusia County, Terence R. Perkins, Judge. Counsel: D. Paul McCaskill of David & Philpot, P.A., and J. Michael Matthews of J. Michael Matthews, P.A. Maitland, for Appellant. Bruce R. Bogan of Hilyard, Bogan & Palmer, PA, Orlando, for Appellee.

(PER CURIAM.) Appellant challenges a summary final judgment in favor of Appellee on her complaint for injuries she received in a Go-Kart accident at a facility operated by Appellee. Appellant contends that Appellee's employee negligently increased the Go-Kart speed during a race, causing her to lose control of the Go-Kart and crash into the railing. The lower court held that a waiver and release form signed by Appellant precluded her negligence action. We reverse.
The sole issue on appeal is whether the waiver and release signed by Appellant effectively precludes an action based on Appellee's purported negligence. The document provides in material part as follows:

WAIVER AND RELEASE FROM LIABILITY FOR
GO CARTS AND TRACK

In consideration for being permitted to drive Go Karts at Family Fun Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as follows:.

1. I HAVE READ THE RULES FOR OPERATING THE Go Karts, and accept full responsibility for obeying the rules and all other posted rules and warning signs;

2. I understand that the course of [sic] which the Go Karts operate has curves, which require a degree of skill and responsibility to navigate safely. I have the necessary skill and will exercise the responsibility necessary to operate the Go Karts and navigate the course safely;

3. The Go Karts are controlled by individual drivers, who are capable of making mistakes and intentionally causing harm to others. I could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inactions of another driver. I freely and knowingly assume this risk. I take full responsibility for any claims or personal injury, death, or damage to personal property arising out of my use of the G [sic] Karts and/or the Go Kart track, whether to me or to other people. On behalf of myself, my heirs, my assigns and my next of kin, I waive all claims for damages, injuries and death sustained to me or property that I may have against Family Fun Town, and its members, managers, agents, employees, successors, and assigns (each a "Released Party").

4. I have been provided the opportunity to inspect the Go Karts and the track prior to signing this Waiver AND Release, and the conditions of each is completely satisfactory to me. If they were not, I would not sign this document or operate or ride in the Go Karts and the track are [sic] completely satisfactory to me.

5. I understand that the terms of this release are contractual and not a mere recital, and that I have signed this document of my own free act.

I have read this waiver and release in its entirety. I understand that I am assuming all the risk inherent in operating and/or riding the Go Karts on the track. I understand that it is a release of all claims that I may have against any released part [sic]. I understand that this is the entire agreement between me and any released party and that it cannot be modified or changed in any way by the representation or statements by any released party or by me. I voluntarily sign my name as evidence of my acceptance of all the provisions in this waiver and release and my agreement to be bound by them.

Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability. UCF Athletics Ass'n v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) (citing Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006); Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998)). To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001) (citing Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590, 591 (Fla. 5th DCA 1998)).

Here, the release does not expressly state that it includes Appellee's negligence and, when the document is considered in its totality, it is not clear that negligence of the sort here was intended to be within the scope of the release.

REVERSED AND REMANDED. (TORPY, C.J., LAWSON and WALLIS, JJ., concur.)










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