In Florida specifically, there are many types of businesses that could benefit from corporate liability waivers due to the nature of the state’s activity-based tourism. Waterskiing, parasailing, scuba diving, exploring the Everglades… All of these pastimes that make the area enjoyable for visitors and locals, alike, can also result in injury and sometimes even death. For that reason, many business owners choose to create indemnity contracts for corporate clients in an attempt to limit their liability.
When physical activity is prevalent in an invitee relationship with a client, the chance of injury or even death is always a possibility. Extended research in this field has shown that plaintiffs typically have two arguments that a signed waiver is not valid: 1.) Contending that the waiver was against public policy. 2.) Claiming that the waiver was not unequivocally clear and that there was an intention to limit liability for its own negligence.
With respect to the public policy argument, Florida court decisions are uncomplicated. This type of argument is only available to plaintiffs when the entity seeking indemnification is performing a service of great public importance. As you may imagine, this argument is not always relevant. Many times, these types of cases do not involve activities that will qualify for this argument. However, an important point to note is that Florida protects children from the potentially bad decisions of their parents, including the decision to protect negligent parties from liability. So, children will not be barred from recovery, even in the cases above, because of Florida’s public policy favoring children.
Plaintiffs have been more successful using the “clear intention” argument when trying to invalidate liability waivers. So how does a business owner have the best chance at having an exculpatory contract upheld in the court of law while such waivers are initially construed against that party? The following requirements detail some of the points business owners should be aware of:
1. The party must clearly and specifically state that the waiver releases it from liability for its own negligence. Verbiage such as “any and all claims are barred” or “the participant assumes any and all risk” is not enough to bar recovery. The exculpatory clause must be clear, unambiguous and clearly state an intention to waive liability for both active and passive negligence.
2. The waiver should be as specific as possible with respect to the possible injuries that can occur as well as how they may result. For example, in an Everglades air boating waiver, it may be appropriate to specify that unauthorized or unsupervised interaction with wildlife during the tour and/or inappropriate conduct aboard the air boat may result in grievous bodily injury or even death. Specificity is looked upon positively by Florida courts.
3. The exculpatory clause should be conspicuous in your contract. The language must be easily recognizable by a reasonable person. Whether you bold, italicize, increase font size or change the color, be sure the waiver in easily discernible and understandable by the participant.
Injuries occurring due to the negligence of your employees are common in a variety of situations. Protecting against that negligence is critical to the long term survival of your business. Although no waiver is “iron clad,” there are precautions that can limit your liability. Contact a corporate legal professional to review your potential liability and protect your livelihood today.
Image courtesy of freedigitalphotos.net by renjith krishnan
Joseph T. Zebrowski, Esq. is a passionate, community-involved professional and company liaison who is leading the development of the estate planning and wealth management division of LaBovick Law Group.