On January 6, 2021, a high school athlete, Ethan Elalou, appealed a final judgment from the Circuit Court for the Seventeenth Judicial Circuit of Broward County in favor of the School Board of Broward County on an executed pre-game release waiver form that barred his claim of negligence against the school board. On appeal, Elalou claimed that the release is ambiguous and unenforceable and that, for public policy reasons, it should be treated no differently than a pre-injury release for commercial establishments. The Fourth District Court of Appeal of Florida affirmed that the appellant did not preserve his claims he now argues and, even if the appellant preserved his claims, his arguments were without merit.
Elalou was injured while playing in a varsity soccer match at Piper High school, part of the Broward County School District. During the game, the appellant was tackled by a defensive player and, as a result of the hit, slid headfirst out of the field of play into a cement block just a few feet outside of the lines of the field. He severely injured his hand and wrist. Appellant and his father filed suit against the School Board alleging negligence in leaving an unpadded concrete block so close to the soccer field, which was a danger to the players. The School Board moved for summary judgment, which was granted by the trial court, based upon a voluntarily signed release form by the appellant and his father prior to the game, citing Krathen v. School Board of Monroe County, 972 So. 2d 887 (FLA. 3d DCA 2007) as support, where a high school cheerleader sustained injuries during a practice at her school and claimed the school board was negligent in failing to place protective mats on the floor during practice. Prior to the accident, the cheerleader signed a consent and release form releasing the school board from liability for any injury or claim resulting from athletic participation. The Third District determined the language in the release “clearly and unambiguously” released the school board from liability for negligence claims.
In the appellant’s case, the release like in Krathen stated that the participant acknowledged the risks of athletic participation and accepted the responsibility with a full understanding of the risk involved. His father also signed a part of the release which agreed to release the school of any and all responsibility and liability for any injury or claim resulting from athletic participation. The release stated in large bold font that, “even if the school district uses reasonable care in providing this activity, there is a chance your child may be seriously injured by participating in this activity because there are certain dangers inherent in the activity which cannot be avoided or eliminated.” In response to the school board’s summary judgment motion, the appellant argued that the release neither mentioned the word negligence nor released the school board from its own negligence. After summary judgment was granted in favor of the School Board, the appellant contended on appeal that the release was ambiguous and unenforceable.
The school board argued that the appellant did not preserve his claims on appeal. As stated, “a litigant seeking to overturn a lower court’s judgment may not rely on one line of argument in the trial court and then pursue a different line of argument in the appellate courts. The school board first stated that the appellant did not argue any public policy reasons for not treating the release differently than the pre-injury release for a commercial business. Second, the school board stated that the appellant did not argue the language in the release was ambiguous or caused him confusion. Rather, the appellant merely argued that the release did not include negligence and thus nothing in the release operated to excuse the school board’s own negligence. The court found for the School Board as the appellant pursued one line of argument originally and then pursued a different line of argument on appeal.
Separately, the school board also argued that even if the appellant had preserved his claims for appeal, the release was unambiguous and enforceable. As it relates to exculpatory clauses, such provisions are deemed to be unambiguous and enforceable when the language unequivocally demonstrates a clear and understandable intention for the defendant to be relieved from liability such that an ordinary and knowledgeable person will know what he or she is contracting away. The appellant cited examples to explain when an exculpatory clause is ambiguous. In Brooks v. Paul, 219 So. 3d at 887, the exculpatory clause said that the surgeon would do the very best to take care of the patient according to community medical standards. In Murphy v. Young Men’s Christian Ass’n of Lake Wales, 974 So. 2d 565, 566-68 (FLA. 2d DCA 2008), the exculpatory clause excluded any claims based on negligence but also provided that YMCA would take every reasonable precaution. The courts determined in both of these cases that the qualifying language created confusion because the entity seeking to be released from liability agreed to be released from liability despite the release’s broad disclaimer of liability. However, as it pertains to the appellant’s case, the wording demonstrated that even if reasonable precautions were taken, serious injuries could still occur; thus, providing a clear warning. While the appellant tried to attempt to suggest that the release was in smaller font size and somehow rendered unclear, the court ruled that “one who signs a contract is presumed to know its contents” and this was “not a case where terms were hidden in the maze of fine print.”
Lastly, the appellant argued on appeal that the trial court erred in entering summary judgment when no policy reason was shown to treat the release any differently from a commercial pre-injury release, which is unenforceable when executed by a parent on behalf of a minor. The appellant relied on the case Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), which held that “a pre-injury release executed by a parent on behalf of a minor is unenforceable in a tort action arising from injuries resulting from participation in commercial activity.” But the court did not extend this holding to a pre-injury release involving a non-commercial activity provider; thus, the appellant’s argument lacked merit.
The one takeaway we can understand from this case along with many others is how important language matters in preventing liability. What is the definition of reasonable care? What is taking every reasonable precaution? What are potential examples of inherent dangers that may result? These are all questions to ask when executing an exculpatory waiver.