2. 2d 60 (Fla. 4th D.C.A. 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. This paragraph shall survive closing.” 6 Fla. Stat. 33 Id at 446. 38 Dilallo v. Riding Safety, Inc. 687 So. This factor found the spotlight in Parkham v. East Bay Raceway, 442 So. 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. In the absence of legal documents or other tangible records, assumption of risk may be implied. The idea is that the plaintiff can't hold the defendant responsible if the plaintiff knowingly exposed him or herself to the possibility of an injury. “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.”. (Magnuson-Moss Warranty Act). 5 Fla. Stat. In Orkin Exterminating Co. v Montagano, 359 So. 2d 507 (Fla. 1973), adopted a strict test regarding what constitutes clear and unequivocal language that will relieve the indemnitee of his or her own negligence.41 In University, a gas line exploded beneath a barbershop, killing the tenant. 68. 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 750 (Fla. 1st D.C.A. << /Length 5 0 R /Filter /FlateDecode >> 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. 2d at 948. Exculpatory Clause. ~ From the Rules Regulating The Florida Bar, The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. 29 Id. For example, in one unreported trial court decision,25 a participant to a boxing match executed a “Release, Assumption of Risk and Indemnification Agreement” in favor of the owners and operators of the facility hosting the event.26 The agreement waived and released the owner from all “risks inherent in boxing.”27 During the boxing match the plaintiff sustained injuries and thereafter initiated a lawsuit against the owner for negligence arising from the owner’s failure to provide emergency post-injury medical treatment.28 The owner’s motion for summary judgment was denied based upon the fact that the agreement failed to specifically release and hold harmless the owner for his own negligence.29 Additionally, the agreement was devoid of any language applicable to events that arose following the fight.30 In that instance the agreement was strictly confined to “risks inherent in boxing” and nothing more. The doctrine of assumption of risk is also known as volenti non fit injuria. §713.20(2) (2001). 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. If any clause, phrase, or word is in conflict with state law, then that single part is null and void. 1975). 2d 458 (Fla. 3d D.C.A. 45 Id. assumption of risk. 44 Id. v. Radio Station WQBA, 731 So. 2d 669 (Fla. 1st D.C.A. L.J. Tenant’s Assumption of Risk and Waiver. The Florida Supreme Court has held that the “as is” sale of residential real estate does not relieve the seller from the duty to disclose latent defects to a buyer. 53 See also Lantz v. Iron Horse Saloon, Inc. 717 So. 98-001615 15th Judicial Circuit in and for Palm Beach County, Florida. THERE IS NO IMPLIED WARRANTY OF HABITABILITY OR OF GOOD WORKMANLIKE CONSTRUCTION. at 508. 59 Id. 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. 34 Id. 2d 35 (Fla. 3d D.C.A. 2d 206 (Fla. 1976). This Waiver and Assumption of Risk will release a company or individual from all liability for injuries, property damage or death which may result from participation in a physical activity. 64 Id. 58 Id. 2d 168 (Fla. 1991); Tout v. Hartford Accident and Indemnity Co., 390 So. 1991). 8 Rule 1.8(h) Florida Rules of Professional Conduct. 2d 587 (Fla. 4th D.C.A. 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. 1979), cert. §718.203 (2000) provides for certain implied warranties that flow from the developer to the purchaser of a condominium unit and from a contractor (or subcontractor or supplier) to a developer or purchaser. Condominium documents and purchase agreements often contain provisions that disclaim all warranties except the statutory warranties described in Fla. Stat.§718.203 (2000). 2d 507 (Fla. 1973); Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2d D.C.A. A plethora of cases discussing these various issues arise in the context of summary judgment. 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. A sample disclaimer of warranty clause is as follows: “WARRANTY AND DISCLAIMER. The Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ counsel of its choice for such purpose. 2d 638 Fla. 1999). 2d 892 (Fla. 1984); Ace Formal Wear, Inc. v. Baker Protective Service, Inc., 416 So. 26 Id. The drafter should be mindful of statutory prohibitions applicable to exculpatory clauses. Once proven, assumption of risk may bar the plaintiff from any recovery for injuries. As a result, federal, state, and local Often this risk can be insured especially with professional services. As lawyers, we constantly draft and interpret exculpatory clauses hoping that the product of our efforts will withstand judicial scrutiny. 46 Id. 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. 4) Specify whether the disclaimer, indemnity provision, or release is for past wrongful acts or future wrongful acts. 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. See Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. Assumption of Risk. A sample provision dealing with these indemnification issues has been furnished for review.72. 2d 731 (Fla. 1974). 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. 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. 2d 11 (Fla. 4th D.C.A. 11 In evaluating exculpatory language, Florida has adopted a six-part “public interest” test to evaluate whether a public interest factor will invalidate an exculpatory clause when: “(1) it concerns a business of the type generally suitable for public regulations; “(2) the party seeking exculpation is engaged in performing a service of great public importance which is often a matter of practical necessity for some members of the public; “(3) the party holds himself out as willing to perform this service for any member of the public who seeks it; “(4) as a result of the essential nature of the service and the economic setting of the transaction, the party seeking exculpation possesses a decisive advantage in bargaining strength; “(5) in exercising superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation; and “(6) as a result of the transaction the person or property of the purchaser is placed under control of the party to be exculpated.” Banfield, 589 So. 2d 441, 446 (Fla. 4th D.C.A. COVID-19 is highly contagious and is known to spread mainly from person-to-person contact. The risks include, but are not limited to, those ... so long as the clause severed does not affect the intent of the parties. Illustrating this point is Banfield v. Louis, 589 So. 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. 31 See also Ashcroft v. Calder Race Course, Inc., 492 So. 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. 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 2d 92 (Fla. 2d DCA 1990), the court granted summary judgment and barred the recovery of damages sustained by a participating driver to a sprint car race known as the “Dash for Cash.” During the Dash for Cash a nonracing vehicle improperly entered the track and struck the driver, resulting in his death.55 Prior to the race, the deceased driver executed a release and waiver clause that “released the track from liability whether caused by the negligence of the releasees or otherwise.”56 The court found the exculpatory language to be “clear, unambiguous, unequivocal, broad enough and specific enough to protect appellees (race promoters) from their own negligence, even if their actions constituted gross negligence.”57 In reaching its holding, the court focused specifically on the “own negligence. Following denial of the defendant’s motion for summary judgment a jury trial was conducted in West Palm Beach, Florida. See The Florida Bar In Re Herman Cohen, 331 So. 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. One commentator has proposed utilizing the following clause to disclaim implied warranties and limit the buyer to the express warranty coverage enunciated in the provision: “The seller will repair all defects in the property for a period of year(s) from the date of sale. Mr. 42 Id. 2d at 445. §47.025(2001). When using an affirmative defense, the defendant admits to the conduct alleged, but provides an explanation to justify the conduct. 51 Id. 1995), Florida Power & Light Co. v. Mid-Valley, Inc.., 736 F.2d at 1316 (11th Cir. 1994); Newbury Square Development Corp. v. Southern Landmark Inc, 578 So. 28 Id. 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