This paragraph shall survive closing.” 6 Fla. Stat. These rights include the manner in which a litigated claim will be settled. The court denied summary judgment because it was unclear whether the patron was deceived or misled by the raceway employee when instructed to sign a form where the release language was hidden from view.52 The holding in Parkham emphasizes that the party benefiting from the release must demonstrate that the injured party knowingly waived and released a known risk. 2d 35 (Fla. 3d D.C.A. 27 Id. 62 In Luria, the exculpatory language addressed by the court was as follows: “It is agreed that Company is not an insurer and that the payments hereinbefore named are based solely upon the value of the services herein described and it is not the intention of the parties that Company assume responsibility for any loss occasioned by malfeasance or misfeasance in the performance of the services under this contract or for any loss or damage sustained through burglary, theft, robbery, fire or other cause or any liability on the part of Company by virtue of this Agreement or because of the relation hereby established. The court reached this decision based upon the fact that the disclaimer failed to repudiate or renounce implied warranties. In Hesson v. Walmsley Construction Co., 422 So. Steven B. 2d 892 (Fla. 1984); Ace Formal Wear, Inc. v. Baker Protective Service, Inc., 416 So. §672.316 (2001). Buyer, to the extent permitted by law, is purchasing the Unit and its interest in the recreational facilities and common elements “AS IS” and should undertake whatever inspections of the Unit, common elements and recreational facilities Buyer so desires in order to assure Buyer as to the quality and condition of the buildings and improvements. No warranties or guaranties are given as to consumer products as defined in 15 U.S.C., §2301 et seq. “As to any implied warranties which cannot be disclaimed either in whole or in part, incidental and consequential damages are disclaimed and Seller shall have no responsibility for any incidental or consequential damages, including, but not limited to, any claims for personal injury, property damage or emotional distress. 1980); Ivey Plants, Inc. v. F.M.C. This express warranty is the only warranty covering this property. Fla. Stat. 2d 1235 (Fla. 2d D.C.A. Before you begin, it is important that you have performed a full risk assessment on your business, and fully outlined in this clause all of the potential risks as any gaps could result in a lawsuit loophole. In a similar context, the Fourth District Court Of Appeal in Travent Ltd v. Schecter, 718 So. The entire risk as to the performance, safety and efficacy of any invention claimed in the Licensed Patents or of any Licensed Products is assumed by ZelleRx, its Sublicensees and Affiliates of either, provided that such assumption of the risk shall not apply to the intentional misconduct or gross negligence by Klingemann. “If the Indemnifying Party shall assume control of the defense of any Third Party Claim in accordance with the above provisions, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Third Party Claim, if the settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party. 2d 487, 489 (Fla. 1979); Middleton v. Lomaskin, 266 So. Risk Agreement 2d 939 (Fla 4th D.C.A. 66 These clauses will be enforced as long as the contractor is provided with a remedy for delay such as an extension of time to complete the project. The same challenge applies to drafting assumption of the risk clauses. Illustrating this point is Banfield v. Louis, 589 So. 2d 318 (Fla. 4th D.C.A. As a result, federal, state, and local include the risk of serious injury, death, and property loss. Florida law prohibits common carriers such as an airline or railroad from extinguishing liability for its own negligence when acting as a common carrier, as opposed to when it engages in private enterprise.9 In interpreting these clauses, courts typically will analyze the relative bargaining strength of the parties, especially when the indemnitee is a public utility, common carrier, or a provider of an essential public service to a large group of individuals.10 This analysis is employed to evaluate whether a clause runs afoul of public policy.11 It is noteworthy that public policy considerations will defeat an exculpatory clause if doing so would frustrate a statute or ordinance that has the very purpose of insuring the safety of persons.12 This concept would apply to violations of the fire code, building codes, or any other penal statute or ordinance imposing a positive duty. The undersigned hereby acknowledges that the use of the Club Facilities and any privilege or service incident to … 2d 943 (Fla. 2d DCA 1982), the court addressed whether the implied warranty of habitability in the package sale of a new home and lot by a builder-vendor to an original purchaser could be disclaimed.13 In considering this issue the court commented as follows: Following the lead of Hesson, another court acknowledged that an “implied warranty can be avoided by a disclaimer in the documents of the sale transaction.” In re Barrett Home Corp. , 160 B.R. 2d 239 (Fla. 3d D.C.A. 60 Id. This supports the proposition that the clause was the result of the bargaining process reflecting the intention of the parties. 2d 206 (Fla. 1976). In one case, a condominium conversion developer successfully disclaimed all express and implied warranties because the disclaimer was bold and conspicuous.18 In the sale of goods, under the Florida version of the Uniform Commercial Code,19 a disclaimer of a warranty must be in writing and conspicuous. Exculpatory clauses extinguish or limit liability of a potentially culpable party through the use of disclaimer, assumption of risk and indemnification clauses as well as releases of liability. Most frequently, the enforcement of exculpatory clauses frequently occurs in connection with personal injury lawsuits arising from a participant’s involvement in high risk sporting activities cases such as car racing, bicycle racing, horseback riding, and boxing. at 508. at 443. 17 Johnson v. Davis, 480 So. 24 Fuentes v. Owen, 310 So. assumption of risk. If there is ambiguity in the exculpatory language, the clause is likely to be unenforceable. 1993). Seller has not given and Buyer has not relied on or bargained for any such warranties. Post-trial motions are pending before the court. 2d 11 (Fla. 4th D.C.A. Under these circumstances, the agreement should include a “cooperation clause” requiring the indemnified party to supply documents and arrange for witnesses to be available for consultation as well as for testimony. Thereafter the estate of the deceased sued the landlord, who defended based upon an indemnification provision in a lease that required the tenant to indemnify the landlord against “any and all claims for damages for any personal injury or loss of life in and around the demised premises.”42 It is significant to note that the tenant had no control over the exploding gas line. 1975); Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, Inc., 427 So. 36 Id. Assumption of Risk_SAMPLE FORM Situations that encompass assumption of the risk have been classified in three broad categories. . 2d 625 (Fla. 1986), in which the Florida Supreme Court announced as follows: “Accordingly, we hold that where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. It is also noteworthy that similar provisions declare illegal and unenforceable indemnification provisions that obligate one party to indemnify a public agency for its own negligence. 19 Fla. Stat. 2d 786 (Fla. 1974); Middleton 266 So. Rubin v. Randwest Corp., 292 So. 9 Russell v. Martin, 88 So. Sample Clauses. The question arises concerning whether these warranties may be disclaimed. 2d 315, 317 (Fla. 1956). The doctrine of assumption of risk is also known as volenti non fit injuria. The court held that the “any and all claims” language in the lease was not sufficiently clear and unequivocal to exculpate the landlord from liability for his own negligence.43, When confronted with enforcing exculpatory clauses, courts consider whether a releasing party appreciated and knowingly waived the risk. 53 See also Lantz v. Iron Horse Saloon, Inc. 717 So. I, on behalf of myself, my heirs, executors, agents, assigns, and representatives, hereby indemnify, release and forever hold harmless Roxbury Arts Group, Inc., a not-for-profit corporation, as well as its directors, employees and 5 Fla. Stat. 4) Specify whether the disclaimer, indemnity provision, or release is for past wrongful acts or future wrongful acts. 141 (1993). Haskell Co. v Lane Co. Ltd., 612 So. 52 Id. In California, a plaintiff who has “assumed the risk” is barred from recovering in a personal injury lawsuit unless: The defendant was grossly … However, from a practical standpoint, utilization of the word “negligence” should increase the likelihood of enforcement. 41 Id. §365(e) (1993); In re Computer Communications, Inc., 824 F.2d 725 (9th Cir. 2d 678 (Fla. 3d D.C.A. §725.06(3) (2001). “Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonable requested in connection therewith.”. 2d at 629 Although applicable to residential property the doctrine of “caveat emptor” remains applicable to the sale of commercial real estate. Under California’s law on assumption of the risk, participating in a potentially risky activity (such as attending a baseball game) may automatically shift the burden of injury to the participant. 1989), rev’d, 551 So. 42 Id. Fla. Stat. As similar legal principles apply to drafting these various types of clauses, they will collectively be discussed and referred to throughout this article as “exculpatory clauses.” In addition, this article will offer practical suggestions to assist counsel in drafting enforceable exculpatory clauses. 2d 8 (Fla. 3d D.C.A. at 1318. However, the failure to appreciate the legal requirements that trigger enforcement of these clauses can spell financial disaster. 1984). at 400. City of Homestead v. Johnson, 760 So. at 444. 4 Residential leases containing such exculpatory clauses would effectively render the warranty of habitability meaningless. This article examines how Florida courts interpret exculpatory language as utilized in releases, waivers of liability, assumption of risk and indemnification agreements as well as other types of contracts. denied, 456 So. Frequently these clauses are showcased in contractual agreements involving common carriers, promoters of sporting events, providers of design/construction services, and among participants to e-commerce transactions. Consequently, the impact is the same, namely, a disclaimer of liability. It appears that the court based its decision on that portion of the clause which provided an option to the customer to increase liability coverage by paying an additional sum.62 This factor strongly supports the conclusion that both parties intended to exculpate the alarm company. 23 Banfield, 589 So. 44 Id. 1978), the court instructed as follows: “We must require draftsmen of all contracts which contain them [exculpatory clauses] to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses.” 2 Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. When using an affirmative defense, the defendant admits to the conduct alleged, but provides an explanation to justify the conduct. 29 Id. 1994), reh’g denied, 37 F.3d 639 (11th Cir. Frequently, these agreements contain a provision that stipulates that the document is the joint product of the parties. 2d 507 (Fla. 1973); Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2d D.C.A. 2d 512, 514 (Fla. 4th D.C.A. Checklist for Drafting Enforceable Exculpatory Clauses The following checklist for drafting exculpatory clauses has been compiled based upon the statutory and case law referenced in this article: 1) The exculpatory language of the clause should be bold and conspicuous through the use of larger type, boldfaced type or a special color, e.g., do not be reluctant to draw attention to exculpatory clause. Courts are more likely to find an exculpatory clause unenforceable as applied to future acts. A plethora of cases discussing these various issues arise in the context of summary judgment. For decades, Florida courts have wrestled with issues relating to the enforcement of exculpatory clauses where liability arises from personal injury, real estate, construction, and commercial disputes. "Assumption of the risk" is a legal doctrine that may prevent an injured person from winning a personal injury lawsuit or getting an injury-related insurance settlement. §83.47 (1977); see John’s Pass Seafood Co v. Weber, 369 So. 2d at 445. 2d 669 (Fla. 1st D.C.A. 2d 332 (Fla. 3d D.C.A. 1998). 30 Id. THERE ARE ABSOLUTELY NO IMPLIED WARRANTIES OF ANY KIND COVERING THIS PROPERTY. 57 Id. 2d 50 (Fla. 4th D.C.A. Legislation and Public Policy Considerations Limit Enforcement of Exculpatory Clauses Exculpatory clauses will be enforced as long as the language is clear and unequivocal.1 These same concepts apply to indemnification agreements, which shift liability for damages to another party, and to releases of liability.2 On the other hand, exculpatory clauses that extinguish liability for intentional torts or reckless harm will generally be declared null and void.3, Florida statutes prohibit the use of exculpatory clauses in certain transactions such as residential lease agreements that disclaim or limit a landlord’s liability to a tenant for breach of the implied warranty of habitability;4 condominium documents that disclaim liability for breach of the statutory implied warranties of fitness and merchantability to a purchaser of a new condominium;5 agreements that waive the right to assert a construction lien law claim in advance of improving real property;6 indemnification provisions in construction contracts that encompass claims or damages resulting from gross negligence, willful, wanton, or intentional misconduct, or for statutory violations.7 Likewise, a clause in a fee agreement that exculpates or limits the liability of an attorney for his own negligence to avoid a claim for legal malpractice is prohibited.8. 71 11 U.S.C. The revised statute, effective July 1, 2001, now permits one party to a construction contract to indemnify the other party for its own negligent conduct as long as a stipulated monetary limitation of liability exists. In an effort to escape liability for breach of the implied warranty of habitability, the developer asserted that the buyer executed a contractual disclaimer of “all warranties, written or oral.” 15 However, the disclaimer clause failed to specifically mention implied warranties and, consequently, the court declined to rule that these warranties were disclaimed. 2d 947 (Fla 4th DCA 1980), an alarm company was held not responsible for $135,000 in losses arising from alleged breach of contract, breach of implied warranties, and negligence in installing and maintaining a burglar alarm system. Solely by the other party should exercise caution or other tangible records, assumption of Related! Belle Plaza condominium Association, Inc. v. 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