A waiver of liability is an increasingly common way for businesses to throw up a shield against legal responsibility for patron injuries. They are especially common where activities might pose a higher-than-average risk. Examples might be trampoline parks, jet skiing or skydiving.
However, as our West Palm Beach injury lawyers can explain, signing a waiver of liability won’t absolutely sabotage the legitimacy of your injury claim. If you can prove the waiver failed to meet certain legal criteria or if there is evidence of reckless or intentional wrongdoing, you may still be able to pursue your claim for damages. The same goes for many claims involving children involved in commercial activities, as noted by the 2008 Florida Supreme Court decision in Kirton v. Fields.
While it’s true that waivers of liability can insulate organizations and businesses from legal responsibility for acts of negligence (i.e., lack of reasonable care) they can’t protect against gross negligence. Gross negligence is the deliberate disregard for someone else’s safety by an act or omission the defendant knew or should have known would put another in danger.
Florida’s Fifth District Court of Appeal recently reversed a trial court’s order of summary judgment favoring a defendant who argued a claim invalid thanks to the waiver of liability. It ultimately came down to gross negligence.
According to court records in Macgregor v. Daytona International Speedway LLC, plaintiff was injured when she was run over by a tow truck that was backing up in a counter-race direction on Pit Row during a Sports Car Club of America race in 2013 in Daytona. The tow truck driver had been given the instruction to back up by an employee who worked for both the International Speedway Corp. and the Daytona International Speedway. Plaintiff sustained serious personal injuries.
Defendants responded to the lawsuit by pointing to a waiver of liability plaintiff had signed as a condition of entering the grounds. The release includes an acknowledgement that events therein are potentially “very dangerous,” and that she was signing away her rights to pursue legal action even if she suffered injuries resulting from negligence.
The trial court found that provisions of F.S. § 549.09(1)(e), which apply specifically to motorsport nonspectator liability releases, do not specifically exclude application to claims of gross negligence, which is what plaintiff alleged in this case. The Fla. 5th DCA disagreed and reversed. Even though the language of the statute indicates that such releases are to extend to “all acts of negligence” in closed-course motorsport facilities, state lawmakers expressly excluded gross negligence from the definition of negligence for such injuries. Because it’s expressly excluded, it can’t be included in the definition of negligence in this case.
The appellate court further disagreed with the trial court’s finding the defendant didn’t engage in conduct that reached the level of gross negligence. Here, justices held, there was prima facie evidence to establish there was a genuine issue of material fact (a matter for the jury to decide) as to whether the defendants were grossly negligent in causing plaintiff’s injuries.
The case was remanded to trial.
The bottom line is that while Florida injury lawsuits involving liability waivers may present some significant challenge, they still may be worthy of consideration. An experienced South Florida injury lawyer can help you weigh the viability of your case.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Macgregor v. Daytona International Speedway LLC, Dec. 21, 2019, Fla. 5th DCA