Exculpatory Clauses Signed By Minors

Exculpatory Clauses Signed by Minors are Voidable

Florida law is clear that a contract with a minor is voidable. 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). Florida law specifically recognizes the right of a minor to cancel any release, exculpatory document or contract entered into when the individual is below the age of majority. Id. The minor-Plaintiff has voided the exculpatory document with the Defendant, Disney World, by virtue of so stating within this motion and by having filed an affidavit and a notice voiding, terminating, and canceling the legal effect, if any, of the document referred to as Defendant’s Exhibit “A”. (A true copy of Plaintiffs’ Notice of Cancellation of Defendant’s Exhibit “A” is attached hereto as Plaintiffs’ Exhibit “2”). Accordingly, since the minor Plaintiff was only 16 years old when he signed the document and since he has now voided same, the alleged exculpatory provision signed by the minor-Plaintiff is void and invalid. 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). B. In Addition to Having Been Voided by the Minor Child, the Subject Exculpatory Document Fails to Release Defendant From Liability As an additional reason why the Court should grant Plaintiffs’ summary judgment on Defendant’s affirmative defenses of waiver, release and express assumption of the risk, Plaintiffs state that Defendant’s Exhibit “A” does not constitute a valid exculpatory document or express assumption of the risk by the minor because it does not clearly and unequivocally release the Defendant of its own negligence and tortious conduct. Defendant’s Exhibit “A” only releases Defendant from a claim based on the minor’s negligence in using the Water Sprite and that is already the law in Florida. Exculpatory clauses are not favored in Florida and are only effective if they plainly and clearly state that the Defendant is released from liability for its own negligence. O’Connell v. Walt Disney World Co., 413 So.2d at 446. “[A]ny attempt to limit one’s liability for his own negligent act will not be inferred from an agreement unless such intention is expressed in clear and 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 not be considered valid and 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). In the case at bar, Defendant’s Exhibit “A” only states:

“In further consideration for the rental to me of the watercraft/bicycle(s) indicated on the reverse hereof, I agree to assume responsibility for any bodily injury or property damage caused by the negligent operation of the same while rented to me. I understand that operators of watercraft must be at least twelve (12) years of age and that the combined weight of all occupants of Water Sprites may not exceed three hundred (300) pounds.”

Clearly there is no intent shown in Defendant’s Exhibit “A” by the minor-Plaintiff to release the Defendant, Disney World, from any liability in this case. In O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982), a release had been signed on behalf of a minor by his parents that said:

“I consent to the renting of a horse from Walt Disney World Co. by Frankie, a minor, and to his/her assumption of the risks inherent in horseback riding. I agree, personally and on his/her behalf, to waive any claims or causes of action which he/she or I may now or hereinafter have against Walt Disney World Co. arising out of any injuries he/she may sustain as a result of that horseback riding, and I will hold Walt Disney World Co. harmless against any and all claims resulting from such injuries.”

Even though the release was clear in comparison to the document in question herein, the Fifth District Court of Appeal held that Walt Disney World Co. was not relieved from liability as a result of the signing of said document by the minor’s parents because the document did not specifically release Walt Disney World Co. of its own negligence. Id. at 447. The Court further stated that an intent to release or indemnify a party will not be inferred where it does not exist. Id. In O’Connell v. Walt Disney World Co., 413 So.2d 444, (Fla. 5th DCA 1982), the Court specifically stated that “an express, contractual agreement to assume the risk of injury or loss is covered by the same principles which apply to any other exculpatory clause. 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. Accordingly, since there has been no express assumption of the risk by the Plaintiffs and since the alleged release of the Defendant does not expressly release the Defendant’s tortious conduct, the Defendant is not exculpated in this matter or in any other way freed from responsibility for its own negligence and tortious acts. Defendant’s Exhibit “A” is insufficient as a matter of law to support Defendant’s alleged affirmative defense of express assumption of the risk, release, and waiver. Thus, Plaintiffs are entitled to partial summary judgment on said alleged affirmative defenses.