Exculpatory Clauses in Personal Injury and Wrongful Death

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Tucker Law

Fort Lauderdale, FL

Practice Areas

Wrongful Death

Exculpatory clauses are provisions in a contract that relieve a party from liability from a tortuous act. In all too many cases, exculpatory clauses in contracts often act as a barrier to succeed on personal injury and wrongful death claims.

Public policy generally disfavors enforcement of an exculpatory clause but are nevertheless commonly enforceable under Florida law when the exculpatory clause is clear and understandable such that an ordinary and knowledgeable person would know what he or she is contracting away because of the countervailing policy that favors the enforcement of contracts. Even the absence of specifically identifying the term "negligence", the Florida Supreme Court has found exculpatory clauses not to be per se ineffective after concluding that the exculpatory clauses were unambiguous and enforceable.

Common Exculpatory Clauses

Exculpatory clauses rear their heads following a tragic event, such as at theme parks, health clubs, and intramurals sports organizations. Some cases result in wrongful death, whereas others simply result in personal injury. In cases involving health clubs, for example, worn out equipment could fail causing serious damage. Despite the fact that the fitness club is in a better position to address the risks posed, the Supreme Court of Florida found that the intent of the parties is important when determining whether to enforce an exculpatory clause in a personal injury lawsuit. This places a significant burden on the Plaintiff's personal injury attorney to overcome health club contracts and the like, many times leaving victims and their families susceptible to bear the costs associated with their injuries.

Plaintiff's Tactics

Settlements involving negligence claims are often time delayed until after a decision on summary judgment. However, if a Plaintiff can survive summary judgment, the value of the claim in the eyes of the Defendant's insurance company typically increases because juries tend to disfavor exculpatory clauses. The Plaintiff's attorney should remind the court at all available opportunities of the public policy considerations relating to the particular exculpatory clause. For example, any disparity between the bargaining power of the contracting parties should be brought forth or the attorney should identify whether the contract relates to an essential public.

As the case progresses, Plaintiff's attorney should attack ambiguities in the contract, even if the ambiguity may appear small. Plaintiff's should keep in mind that many cases involving exculpatory clauses may go through various appeals processes and significant stretch out the final conclusion of the matter.

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