2d 892 (Fla. 1984); Ace Formal Wear, Inc. v. Baker Protective Service, Inc., 416 So. 12) Indemnification agreements should include provisions to deal with an arrangement where one party has the duty to defend and hold harmless the other party in litigation. 57 Id. 72 Example language: Duty to Cooperate, Provide Documents and Defend “The parties hereto, at any time and from time to time, following the execution hereof shall execute and deliver all such further instruments or documents and take all such further action as may be reasonably necessary or appropriate in order to more effectively carry out the intent and purpose of this Settlement Agreement. 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. 5 Fla. Stat. & Sports L. Rev. 2d 441, 446 (Fla. 4th D.C.A. 1994), reh’g denied, 37 F.3d 639 (11th Cir. 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. 2d at 945. These rights include the manner in which a litigated claim will be settled. Lesser is a shareholder in Becker and Poliakoff, P.A., Ft. Lauderdale, where he devotes his practice exclusively to construction law and litigation. See Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. However, this statutory right of indemnification shall not apply to include claims or damages resulting from gross negligence, willful, wanton or intentional misconduct, or for statutory violations. That the rider and additional obligation shall in no way be interpreted to hold the Company as an insurer.” (Emphasis added.) v. Radio Station WQBA, 731 So. << /Length 5 0 R /Filter /FlateDecode >> This duty is equally applicable to all forms of real property, new and used.”480 So. It alleges that the risks assumed are not those created by the defendant’s negligence, but rather by the nature of the activity itself. 1994); Newbury Square Development Corp. v. Southern Landmark Inc, 578 So. 38 Dilallo v. Riding Safety, Inc. 687 So. 2. assumption of risk. 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. 44 Id. Post-trial motions are pending before the court. 2d 943 (Fla. 2d D.C.A. 2d 750 (Fla. 1st D.C.A. 52 Id. Statement of Waiver of Liability and Assumption of Risk Related to Coronavirus/COVID-19. x��m�G�����U E����1�:H$��P��s�X{�#���P�>����?�Z�(W�V�3=��=ݳ���ɽu��t����6n��N������k��;�������ܬ���M����oq[���v���x��}�w�0����>���ә���7�KW>�q��M�����X$��'7���G�ξ�X�������[�ѭ���� ��/�"$��R�2t>���3��Z���G7E=��f8�4I��d�0�(�4��; މֿ�5v����t�����+>���ґ��v5�,\�|�>�_�J>� b�]X� .>_�r-g��ԏ���߲�gH��7������p�\O��� ������a��Mos����稁4�g�@LEŚ#����QL�ѯ�mn��+�������C����>� �W��c����1Kc*��a��'��G����ޕ�� J߃�N�4��vYɭ�SS�;)�~���b�r�/��5��ZE\�}U�\\��_ [� [��;�-�n�~u���~�b�;\GI �{�;�Bh. City of Homestead v. Johnson, 760 So. Six years following its decision in University, the Supreme Court extended its holding to include cases in which the indemnitor and indemnitee were jointly as opposed to solely liable. 2d 155 (Fla. 3d D.C.A. 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. 61 Continental Video Corp. v. Honeywell, Inc., 422 So. If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages. 1975). 1973), cert. 2d 638 Fla. 1999). 2d 512, 514 (Fla. 4th D.C.A. 387, 390 (M.D. denied, 289 So. If there is ambiguity in the exculpatory language, the clause is likely to be unenforceable. 65 Id. Sample Clauses. Affirmative defenses are used in criminal and civil lawsuits to justify a defendants actions, or to limit his liability. Under the federal rules of Civil Procedure, assumption of the risk is an Affirmative Defense that the defendant in a negligence action must plead and prove. Your assumption of risk includes, but is not limited to, your use of any exercise equipment (mechanical or otherwise), sports fields, courts, or other areas, locker rooms, sidewalks, parking lots, stairs, pools, whirlpools, saunas, steam rooms, lobby or other general areas of any facilities, or any equipment. 47 Id. 2d 669 (Fla. 1st D.C.A. 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. However, from a practical standpoint, utilization of the word “negligence” should increase the likelihood of enforcement. 2d 206 (Fla. 1976). assumption of risk / waiver of liability / indemnification agreement: A. I freely acknowledge that I have or will voluntarily register (myself/my child) to participate in soccer, lacrosse or other athletic Activities. 1998), upheld strikingly similar exculpatory language to bar a bicycle participant’s claim for personal injury against the tour operator based upon the release. A sample provision dealing with these indemnification issues has been furnished for review.72. 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. 4 Residential leases containing such exculpatory clauses would effectively render the warranty of habitability meaningless. Assumption of the Risk and Waiver of Liability Relating to Coronavirus/COVID-19 The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. 50 Id. n. 1) taking a chance in a potentially dangerous situation. Seller has not given and Buyer has not relied on or bargained for any such warranties. Consequently, the impact is the same, namely, a disclaimer of liability. On this point, the agreement should obligate counsel to provide for interim litigation progress reports and notification of all hearings. L.J. Under those circumstances, the indemnified party may elect to represent itself in the proceedings. 29 Id. at 444. 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. Specimen copies of all manufacturer’s warranties which will be passed through to Buyer at closing and which are not expressly warranted by Seller have been made readily available for Buyer’s review in the ‘Binder’ located in the sales office and Buyer acknowledges disclosure of such warranties and the location thereof by Seller. 2d 318 (Fla. 4th D.C.A. denied, 305 So. 9 Russell v. Martin, 88 So. 58 Id. 45 Id. When the financial stakes are high these clauses will likely be attacked. Haskell Co. v Lane Co. Ltd., 612 So. In Valhal, the exculpatory clause limited the architect’s liability to the fee paid or $50,000 but provided an option to increase insurance liability by the owner paying a surcharge for the increased insurance premiums. The court reached this decision based upon the fact that the disclaimer failed to repudiate or renounce implied warranties. 2d at 444. See Shorter v. Drury, 103 Wn.2d 645, 653, 695 P.2d 116 (1985). 6) When feasible, make sure that a person with authority to speak for the organization is available to explain the risks to the other party. The risks include, but are not limited to, those ... so long as the clause severed does not affect the intent of the parties. Assumption of risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm connected with the negligence of the defendant. “PURCHASER(S) ________ (initials)” David L. Abney, Disclaiming the Implied Real Estate Common-Law Warranties, 17 Real Est. In Florida Power & Light Co. v. Mid-Valley, Inc.,736 F.2d 1316 (11th Cir. The Government's assumption of risk for aircraft in the open shall continue unless the Contracting Officer finds that the Contractor has failed to comply with paragraph (b) of this clause, or that the aircraft is in the open under unreasonable conditions, and the Contractor fails to take prompt corrective action. COVID-19 is highly contagious and is known to spread mainly from person-to-person contact. 2d 616 (Fla. 2d D.C.A. A hold harmless agreement where the participant agrees not to hold the District responsible for any loss that may result from participation in the activity. A clause in an executory contract or unexpired lease that purports to give a right of termination for insolvency or bankruptcy is void and unenforceable.71. 2d 441 (Fla.4th DCA 1991), in which a participant to the 1985 Bud Light United States Triathlon Series competition completed and executed an official entry form stating “I understand that this waiver includes any claims based on negligence, action or inaction of the above parties.”59 During the competition, the participant, while riding a bicycle, was struck by an automobile and sustained injuries. 16 Sellers of residential real estate face greater challenges when attempting to disclaim any duty to disclose the existence of facts that may materially affect the value of the property. “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. An assumption of risk is a term defining a defense strategy scenario where a plaintiff in a personal injury case places him or herself in a position or commits an act that can result in injury or death, and this person is well aware of the danger posed by the hazard but goes through with the act nonetheless. 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. That in the event Subscriber desires Company to assume greater liability for the performance of its services hereunder, a choice is hereby given of obtaining full or limited liability by paying an additional amount under a graduated scale of rates proportioned to the responsibility, and an additional rider shall be attached to this Agreement setting forth the additional liability of Company and additional charge. These provisions gain significance as parties seek to shift the monetary risk of business transactions to others. Miscellaneous Clauses Although not technically exculpatory clauses, various language is frequently included in agreements to discourage parties from asserting their rights. 2d 50 (Fla. 4th D.C.A. Illustrating this point is Banfield v. Louis, 589 So. 1972), 50 A.L.R.3d 1062, opinion adopted by 264 So. Rubin v. Randwest Corp., 292 So. 8) Courts are more inclined to enforce monetary limitations on liability as opposed to extinguishing liability. 2d 11 (Fla. 4th D.C.A. The drafter should be mindful of statutory prohibitions applicable to exculpatory clauses. 27 Id. Similarly, in O’Connell v. Walt Disney World Company, 413 So. 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. 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. 2d 939 (Fla 4th D.C.A. 1993). The fees and expenses of such separate counsel shall be paid by the Indemnified Party; provided, however, that the Indemnifying Party shall pay the reasonable fees and expenses of such separate counsel (i) incurred by the Indemnified Party after it shall have given notice of such Third Party Claim to the Indemnifying Party and (ii) prior to the date, the Indemnifying Party shall fail or refuse to acknowledge that it will have an indemnity obligation for such Third Party Claim (and any losses, liabilities, costs and expenses relating thereto) as provided hereunder or (iii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would, under applicable code or rules of professional conduct or responsibility, create a conflict of interest. 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. 1991). 1998).Courts have held that specifically including a reference in an exculpatory clause or release that identifies a released party by capacity instead of by name (e.g., officer, director, and agent) is sufficient to absolve those parties of liability as a matter of law. 1985), the U.S. Court of Appeals for the 11th Circuit considered whether a limitation of liability and indemnification clause would exculpate a professional engineer from his own negligence. On this score, parties presented with written agreements containing exculpatory clauses prepared solely by the other party should exercise caution. Telephone interview with Gregg I. Shavitz, counsel for the plaintiff in Boca Raton, Florida (August 31, 2001). Assumption of Risk is a type of defense available for most personal injury and negligence lawsuits. 2d 487 (Fla. 1979). Prior to participating in this activity, the child’s parents executed a document that released and held harmless Walt Disney World from liability.32 In addition, the form executed by the parents consented to the minor’s “assumption of the risks inherent in horseback riding.”33 During the course of the trail ride a Walt Disney World employee, on horseback, caused a stampede.34 As a result, the child was thrown from the horse and thereafter, his parents initiated a lawsuit to recover damages.35 The court denied summary judgment filed by Walt Disney World.36 In reaching its decision the court held that the release form did not specifically mention that Walt Disney World would be released for the negligence of its own employees.37 As a general rule, a release must clearly demonstrate that it releases one from his or her own negligence before it will be effective.38 In contrast, far too often the use of overly broad language in a release may also prove unsuccessful. Drafters of exculpatory clauses must be sufficiently specific to release liability for certain conduct yet be broad enough to encompass other related acts and conduct that may result in liability. "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. 11) In the event a complete release is being furnished without any limitations or exclusions it should be labeled a “GENERAL RELEASE” or“UNCONDITIONAL AND FULL GENERAL RELEASE” as opposed to “RELEASE.” Releases should include the following elements: a) any and all claims, b) demands; c) damages; d) actions; e) causes of action; f) suits in equity of whatever kind or nature; g) use of the word “negligence” to clarify that the release in an exculpatory clause encompasses negligent conduct. 8 Rule 1.8(h) Florida Rules of Professional Conduct. Finally, the agreement should employ procedures for resolving conflicts of interest that may arise during the litigation. 19 Fla. Stat. An express assumption of risk where the participant acknowledges understanding the nature of the activity and the risks involved, and chooses voluntarily to accept those risks. 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. 2d 678 (Fla. 3d D.C.A. 1979). The form was folded over concealing the upper half of the document where the printed exculpatory language appeared.47 As a result, the critical language was not visible when the patron executed the document.48 The language released the raceway from “all liability in the event of an injury to a signatory in any restricted area.”49 Thereafter, the patron was struck by a racecar and initiated a lawsuit against the raceway.50 In response, the raceway defended based upon the existence of the patron’s signature on the release.51. Klingemann shall not, except for his intentional … 2001); Marriott Corp v. Dasta, 26 F.3d 1057 (11th Cir. 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. In most instances, courts generally will bar a party from recovering damages when an executed waiver or release of liability acknowledges the risk sought to be limited or extinguished.54, In Theis v. J & J Racing Promotions, 571 So. 2d 458 at 459–60(Fla. 3d D.C.A. 70 Fla. Stat. 69 Fla. Stat. Assumption of the risk may be proven by a clause in a contract stating the existence of the danger and the waiver of liability of the defendant for injuries caused, but may be shown by other evidence. 2d 168 (Fla. 1991); Tout v. Hartford Accident and Indemnity Co., 390 So. 2d 8 (Fla. 3d D.C.A. 2d 507 (Fla. 1973); Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2d D.C.A. The indemnification agreement should establish a standard of care applicable to the lawyer assigned to defend an indemnified party. 2d 758 (Fla. 1980); the court in Rapallo relied on Gable v. Silver, 258 So. THERE ARE ABSOLUTELY NO IMPLIED WARRANTIES OF ANY KIND COVERING THIS PROPERTY. However, the general rule of contract construction is that an ambiguous clause will be construed against the drafter. Conclusion Exculpatory clauses that extinguish or limit liability enable your clients to limit risk and avoid liability. Exculpatory provisions in residential leases have been declared illegal and unenforceable to the extent that they attempt to relieve the landlord of liability Fla. Stat. %PDF-1.3 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. Frequently, these agreements contain a provision that stipulates that the document is the joint product of the parties. 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. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. 30 Id. Florida courts generally enforce these clauses subject to certain exceptions such as delays not reasonably contemplated by the parties and active interference by the owner. 59 Id. 2d 35 (Fla. 3d D.C.A. Under those circumstances, the party adversely impacted by the clause may lose the ability to have it construed against the drafter. 2) Specify in the document that you are seeking to obtain a releasing for your own negligence and specifically use the word “negligence.”. 65, In a construction setting, owners often seek to exculpate their own monetary liability for delays they may cause to contractors engaged in construction on their behalf. “Subject to the limitations set forth in this Section, the Indemnifying Party shall assume control of the defense of any Claim asserted by any third party (“Third Party Claim”) and, in connection with such defense, shall appoint lead counsel for such defense, in each case at its expense. 2d 444 (Fla. 5th DCA 1982),31 a nine-year-old child sustained injuries while horseback riding at Walt Disney World. 2d 72 (Fla. 4th D.C.A. 37 Id. %��������� 1974), cert. How to Write an Assumption of Risk Clause. 16 Rapallo South, Inc. v. Jack Taylor Development Corp., 375 So. 71 11 U.S.C. 2d 436, 437 (Fla. 5th DCA 1990), held that “There are no words of art required in a release if the intent of the parties is apparent from the language used.”53 Hardage stands for the proposition that the specific use of the word “negligence” is not required. at 1319. 2d at 629 Although applicable to residential property the doctrine of “caveat emptor” remains applicable to the sale of commercial real estate. Express assumption of risk may arise from an exculpatory contract by which the plaintiff agrees to relieve the defendant of liability for certain occurrences. Assumption of risk is an affirmative defense commonly used in civil lawsuits to argue that the defendant is not liable for the plaintiffs damages, as the plaintiff knowingly took part in a dangerous activity. 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. 1979). 2d 418 (Fla. 1972), holding that a one-year express warranty in lieu of all other obligations and duties of the defendant did not preclude an action for breach of implied warranty. Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement I understand that all extra-curricular activities have a certain degree of inherent risk, which includes known and unknown risks. At common law, “assumption of the risk” is an affirmative defense where the defense claims that the plaintiff knowingly exposed himself to the hazards that caused injury or damages. What kinds of injuries can be covered by an assumption of risk agreement? 1981). 14 Id. 49 Id. 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. This express warranty covers all types of defects, whether caused by workmanship or flaws in materials. Except for this express warranty, THE PROPERTY IS SOLD ‘AS IS.’ “THERE ARE NO IMPLIED WARRANTIES COVERING THIS PROPERTY. As a result, the participant filed a lawsuit against the race promoters. Courts disfavor these clauses absent clear and unequivocal language expressing the intent of the parties. 33 Id at 446. 1998). If he or she consents to it, then you may use this form to outline the stipulations and terms of the assumption agreement. In Ashcroft, the Florida Supreme Court held that horseracing on a track with a negligently placed exit gap is not an inherent risk for jockeys who participate in the sport of horseracing. Auto-Owners Insurance Co. v. Anderson, 756 So. A sample disclaimer of warranty clause is as follows: “WARRANTY AND DISCLAIMER. A plethora of cases discussing these various issues arise in the context of summary judgment. 2d 399 (Fla. 2d DCA 1983). The contract contained the following provision: The court recognized that the option to pay an additional fee in exchange for more insurance coverage represented a critical factor in its decision to enforce the limitation of liability clause. Courts strictly construe exculpatory clauses would effectively render the warranty of habitability of. Whether these warranties may be implied language, the agreement should employ for... Charles Poe Masonry, Inc., 824 F.2d 725 ( 9th Cir interim progress... 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