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Hoping to Expose the Danger of Liability Waivers with Exculpatory Clauses

On November 8, 2006, Owen Peterson, then 22, was walking through a trade show at Disney’s Wide World of Sports.  On this particularly windy day, an advertising balloon, tied to a tree, blew down and struck Peterson in the back of the head.  Peterson didn’t initially experience any severe pain, but he was advised by a Disney employee to seek medical attention, with the assurance that Disney would pay any medical expenses Peterson incurred.  At the hospital, Peterson was given prescriptions for pain medication and muscle relaxers, advised the there was no apparent neurological damage, and told he could participate in the paintball tournament he planned on attending the following day, as long as he could physically tolerate the activity.  Taking the doctor’s advice, Peterson did just that.

The following day, on November 9, 2006, Peterson decided he did want to play in the paintball tournament, hosted by Disney, and was presented with a liability waiver.  Without giving it much thought, Peterson signed the waiver, in preparation to compete the following day, November 10th.

After the tournament ended, Peterson returned home to Charlottesville, Virginia.  Still experiencing head and neck pain for ten days following the accident, Peterson decided to seek medical attention at a local hospital when he awoke that morning unable to see across the room.  It was then that Peterson realized the incident he experienced at the Disney trade show was more serious than he initially thought.  Peterson was then diagnosed with post-concussive syndrome, and his injuries totaled $80,000.  Peterson was never reimbursed by Disney for his medical bills and was advised he never would.

Unbeknownst to Peterson, the liability waiver he signed to participate in the paintball tournament barred him from bringing any negligence claims against Disney for any incidents that happened between the dates of November 7, 2006-November 12, 2006; despite the fact that Peterson did not even sign the waiver until November 9th.  Included in this waiver was an “exculpatory clause”, meaning that Peterson agreed not to sue the parties named in the waiver, even in claims based on negligence for resulting bodily injury.

Peterson, however, was not discouraged from filing suit against Disney.  In 2010, Peterson retained an attorney, and filed a lawsuit against Disney, Crossfire, Incorporated (the company responsible for the advertising balloon), and the owner of Paintball Sports Promotions, alleging the negligent acts of those named parties created an unreasonably dangerous condition for its invitees.  Unfortunately for Peterson, his attorneys saw this as a losing case and withdrew as counsel in March 2013; just two months before summary judgment was granted for all defendants.

At that point, although Owen Peterson became discouraged to continue with his claim, his father, Dave Peterson, was not ready to give up the fight.  Dave Peterson found attorneys willing to take the case and file an appeal, and on August 6, 2014, he plans to travel down to Orlando for a Court hearing in conjunction with this case, and hopes to draw as much attention to this matter as possible.  Dave Peterson wants to make people aware of the dangers associated with these exculpatory clauses contained within the liability waivers, barring any negligence claims that may be brought.  (Orlando Weekly).

The issues presented by exculpatory clauses have been brought to the attention of Florida courts in the past.   These courts have held that “while exculpatory clauses are disfavored, they may still be held enforceable if the language is so clear and understandable that an ordinary and knowledgeable person knows what he is contracting away.”  In several cases, the court has held that unless the agreement expressly states that the Plaintiff’s specific injury indemnifies the Defendant, the release form will not bar Plaintiff’s recovery due to Defendant’s negligence.  More specifically, in 2012 the Fifth District Court of Appeal was presented with a case in which the Plaintiff was injured as a guest at Defendants’ condominium, after signing a guest licensing agreement, which contained an exculpatory clause.  The court ultimately decided that, in order to be effective, the language of an exculpatory clause must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.  As such, there may be hope for Dave Peterson’s claim if the language contained in the exculpatory clause of the release form signed by Owen Peterson was not clear enough for an ordinary person to understand what they were signing away.

It is important to consider what you are signing when you enter into a liability agreement.  Be aware that you may be putting yourself in a position, like Owen Petersen, in that any and all resulting negligence could be protected by the waiver you are signing.  “According to the Florida Bar Association, Florida law doesn’t necessarily favor exculpatory clauses, but that doesn’t mean it won’t enforce them.”  (Orlando Weekly).  Be sure to read over any agreement you are entering into, especially one in which an exculpatory clause is present.

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