Exculpatory clauses in written agreements are alive and well in Florida. Nevertheless, they are not favored by the courts and are only effective if they plainly and clearly state that the defendant is released from liability for its negligence. O’Connell v. Walt Disney World Co., 413 So.2d at 446. To be valid, the exculpatory clause must be obvious and unambiguous. “Any attempt to limit one’s liability for his negligent act will not be inferred from an agreement unless its intention is expressed and clear in unequivocal terms.” [citations omitted] Id. The wording of the exculpatory clause must be so clear and understandable that an ordinary and knowledgeable person will realize what he or she is contracting away. Absent that explicit language, an exculpatory clause will be considered unenforceable as a matter of law. Southworth and McGill v. Southern Bell Telephone & Telegraph Co., 580 So.2d 628, 634 (Fla. 1st DCA 1991); Federal Deposit Insurance Corporation v. Carre, 436 So.2d 227 (Fla. 2d DCA 1983).
Express assumption of the risk in a contract is treated equally. The Court, in O’Connell v. Walt Disney World Co., specifically stated that “an expressed, contractual agreement to assume the risk of injury or losses is covered by the same principles which apply to any other exculpatory clause. Thus, in order to be enforceable, the agreement must unambiguously indicate which risks are assumed and will not be interpreted to include losses resulting from the defendant’s negligence unless it is clear that the plaintiff so intended.” Id. at 447. If an exculpatory document does not specifically state that the party is released in a case and freed from responsibility for his or her own negligence and tortious acts, and if the language does not clearly release the tortious actor, then the exculpatory language will be deemed legally insufficient. An intent to release or indemnify a party will not be inferred if it does not exist. Id.
Exculpatory clauses in contracts signed by minors are voidable as a matter of law. When dealing with issues involving minor children and agreements, a trial attorney should always remember that a minor plaintiff may render an agreement voidable up and to the time of reaching majority. Orange Motors of Miami, Inc. v. Miami National Bank, 227 So. 2d 717 (Fla. 3d DCA 1969); Liberty Mutual Ins. Co. v. Conley, 152 So. 2d 521 (Fla. 1st DCA 1963); Mossler Acceptance Co. v. Perlman, 47 So. 2d 296 (Fla. 1950); Sparr v. Florida S.R. Co. 6 So. 60 (Fla. 1889). In cases involving exculpatory documents signed by minor children, a trial attorney attempting to avoid liability should have the minor plaintiff’s guardian or parent file a notice voiding the exculpatory agreement; thereby, terminating and canceling the legal effect of the contract. Once the exculpatory clause has been voided by the minor plaintiff or legal guardian, it will have no legal effect. Orange Motors of Miami, Inc. v. Miami National Bank, 227 So. 2d 717 (Fla. 3d DCA 1969); Liberty Mutual Ins. Co. v. Conley, 152 So. 2d 521 (Fla. 1st DCA 1963); Mossler Acceptance Co. v. Perlman, 47 So. 2d 296 (Fla. 1950); Sparr v. Florida S.R. Co., 6 So. 60 (Fla. 1889). In order to bind a minor to a contract, an adult with authority to bind the minor child’s interest must sign on behalf of the minor child. It is questionable whether an adult has the right to sign an exculpatory term that will adversely affect a child’s rights in a personal injury claim. See, O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982).
0When working on an exculpatory clause issue, determine whether the relevant language is specific and clear. If the agreement’s language is vague, ambiguous, or does not clearly release the party from liability, then the exculpatory provision may be deemed insufficient. In that case, a motion for summary judgment should be filed attacking the legal sufficiency of the alleged exculpatory language. If the exculpatory language is sufficient as a matter of law, the defendant should allege the exculpatory clause as an affirmative defense to any claim, and raise the issues of release, waiver and/or express assumption of the risk by contract. The exculpatory documents should be attached to the pleading setting out the affirmative defense so as to meet the requirements of Florida Rule of Civil Procedure 1.130.
Although strictly construed, exculpatory clauses are valid under Florida law. If properly drafted these contractual limitations may prevent a personal injury or property damage claim from succeeding. Individuals relying on, or challenging, exculpatory provisions should immediately move for summary judgment on the legal sufficiency of the exculpatory clause. This will allow for a rapid resolution of the matter before significant costs and attorneys’ fees are incurred by the parties.