When you are injured as a result of some person’s or business’ negligence, you generally have a right to sue them to recover for your losses. However, what happens if you signed one of those contracts that says you cannot sue the other person or business, regardless of their negligence? If it contains an enforceable exculpatory clause, your claim is likely limited or barred as a matter of law.
What Is an Exculpatory Clause and How Am I Protected in Florida?
An exculpatory clause is one that extinguishes or limits the liability of a potentially liable party, usually through the use of releases of liability, assumptions of risk, disclaimers, or indemnification clauses. There is a public policy in Florida disfavoring the enforceability of exculpatory clauses “because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss”. Sanislo v. Give the Kids the World, Inc., 157 So.3d 256, 260 (Fla. 2015). This policy is also tempered with the competing American policy of freedom of contract, giving people the freedom to make all the (otherwise, legal) good or bad deals they want. To balance these opposing policies, Florida courts will only enforce an exculpatory clause which “unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away.” To paraphrase, for the exculpatory clause to bar or limit an injured person’s right to sue, its meaning must be clear and obvious to an intelligent layperson (non-lawyer) such that there is no confusion as to what that person contracted away. Should the clause fail this test, it must be held to be ineffective to bar an injured person’s claim.
If you have been injured after signing a document containing an exculpatory clause, call or contact online the attorneys at Chiumento Dwyer Hertel Grant, PL for a free consultation. We will review the facts of your case and explain your legal options.