FLORIDA
Likelihood of Enforcement: Moderate
A. Pre-Injury Liability Waivers
Contracts that limit liability for negligence are enforceable under Florida law if they are unambiguous and do not “contravene public policy.” Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 260 (Fla. 2015).
To be unambiguous, the intention to waive liability must be “clear and unequivocal” and the wording must be sufficiently understandable that “an ordinary and knowledgeable person will know what he or she is contracting away.” Id. at 261. In determining whether liability waivers are ambiguous, Florida courts construe the clause “strictly against the party seeking to be relieved of liability.” Gillette v. All Pro Sports, LLC, 135 So. 3d 369, 371 (Fla. Dist. Ct. App. 2014).
The exculpatory clause does not need to explicitly use the term “negligence” to constitute an enforceable liability waiver for negligent acts. Sanislo, 157 So. 3d at 270. An agreement that does not use the term negligence is enforceable if it still “clearly conveys that [the defendant] would be released from any liability, including negligence.” Id. Broadly worded liability waivers are often enforceable where the agreement applies to activities that are not inherently dangerous. Id. at 270-71 (explaining that a broadly worded liability waiver for an activity that is not inherently dangerous could only be waiving liability for negligence).
If the agreement does explicitly mention negligence, Florida courts interpret exculpatory clauses in pari materia and may find that other provisions create ambiguities over what forms of liability are waived. See Fresnedo v. Porky’s Gym III, Inc., 271 So. 3d 1185, 1188-90 (Fla. Dist. Ct. App. 2019) (finding that paragraphs listing specific injuries covered created ambiguity about the intention of the contract despite a broad clause covering liability for negligence); Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565, 568-569 (Fla. Dist. Ct. App. 2008) (finding that exculpatory clause releasing facility from liability for “any and all claims based on negligence” was ambiguous as the facility promised to take “every reasonable precaution” in the same contract).
Finally, liability waivers are not enforceable to the extent they attempt to release a party from liability for an intentional tort. Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. Dist. Ct. App. 2008). However, a liability waiver may release a party from liability for an act that is grossly negligent. Theis v. J & J Racing Promotions, 571 So. 2d 92, 94 (Fla. Dist. Ct. App. 1990).
B. Waivers Signed By Parents on Behalf of Minor Children
In general, pre-injury releases signed by parents on behalf of minor children are not enforceable under Florida law if the child is injured while participating in a commercial activity. In Kirton v. Fields, the Florida Supreme Court considered a pre-injury release signed by a parent on behalf of their child and held that the owners of a motor sports park could not enforce the release against the minor or the minor’s estate. 997 So. 2d 349, 358 (Fla. 2008). A Florida appeals court extended this reasoning to indemnification agreements in Claire’s Boutiques v. Locastro, invalidating a contract that required a parent to indemnify a commercial entity for that entity’s negligent actions that injured the parent’s child. 85 So. 3d 1192, 1196 (Fla. Dist. Ct. App. 2012).
After Kirton was decided, the Florida legislature passed legislation allowing parents to sign a pre-injury release waiving their minor child’s right to sue a commercial activity provider for the inherent risks of that activity. Fla. Stat. Ann. § 744.301(3)(a) (West 2021).[1] Inherent risks include negligent actions of other participants in the activity, but not the negligent actions of the activity provider or its owners, affiliates, employees, or agents. § 744.301(3)(a)(2). In Locastro, the Florida Court of Appeals concluded that this statute “clearly evinces a Legislative public policy choice that commercial providers should be liable for their own negligence when minors are injured.” 85 So. 3d at 1200.
Some Florida courts have concluded that non-commercial entities can enforce a pre-injury liability waiver signed by parents on behalf of their minor children, but the issue has not been reviewed by the Florida Supreme Court. See Elalouf v. Sch. Bd. of Broward Cnty., 311 So. 3d 863, 867 (Fla. Dist. Ct. App. 2021) (stating in dicta that a pre-injury release a parent signed to let their child participate in a school activity was enforceable); Krathen v. Sch. Bd. of Monroe Cnty., 972 So. 2d 887, 890 (Fla. Dist. Ct. App. 2007) (enforcing a pre-injury release signed by parents of a minor child for a school activity); Gonzalez v. City of Coral Gables, 871 So. 2d 1067 (Fla. Dist. Ct. App. 2004) (enforcing hold harmless agreement for “community or school supported activities”).
[1] If the liability waiver is valid and enforceable under § 744.301, then there is a presumption that the child’s injury is caused by an inherent risk of the activity unless the claimant can prove otherwise by clear and convincing evidence. § 744.301(3)(b)(2).
Last updated 03/2022
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.