Occasional carnival-goers, infrequent go-cart drivers, and once-in-a-while horse-back riders beware. . .
That should be the warning on the newest opinion on exculpatory agreements in Florida.
I’m sure everyone at one point or another has participated in some “dangerous” activity like hang-gliding or canoeing or horse-back riding and been given one of those “release” things to sign. Usually what they say is that there is a risk to the activity – the trip guide can’t be held responsible if your horse flips out and flips you off, or if your white-water raft hits a bump and you end up in the water. All that he people providing the activity are responsible for is acting responsibly under the circumstances.
Well that’s all well and good, but what happens if your guide or trainer or safety coordinator doesn’t act responsibly? What if they act unreasonably by putting a small child in a lifejacket meant for an adult? Or by assigning a beginner to ride a horse that’s unbroken or known to buck people off?
Almost every district court of appeal has held that a pre-incident release, or exculpatory agreement, does not relieve the people in charge of liability for their own future negligence unless it is absolutely crystal clear. It’s just a bad idea in general to give operators a free pass to act carelessly – especially in Florida, the land of the tourist attractions. Instead, the liability waiver would only cover the danger inherent in the activity.
But recently, the Supreme Court of Florida reviewed one of these waivers and held that it effectively released the provider from liability for its own negligence, even though the waiver didn’t expressly say that. Sanislo v. Give Kids the World, Inc., 40 Fla. L. Weekly S79a (Fla. Feb. 12, 2015)
Long gone are the days where people can expect attraction operators to act reasonably or otherwise pay the price for whatever damage they cause. Those waiver things that nobody ever reads can now extinguish liability for more than just the inherent, obvious dangers of the activity – it can relieve the operators from carelessness and negligence that hasn’t even happened yet.
