Pre-Injury Release Form Was Not "Clear and Unequivocal"

In the case of Lazaro Fresnedo v. Porky’s Gym III, Inc., Case Number 3D17-1126 (Fla. 3rd DCA April 24, 2019), Florida’s Third DCA held that the pre-injury waiver and release form was not “clear and unequivocal” and was, therefore, void.

Underlying Facts

Mr. Fresnedo was knocked unconscious and suffered severe facial injuries when he was attacked by another patron at Porky’s Gym. His injuries required facial reconstructive surgery.

Mr. Fresnedo sued the gym for common law premises liability claims including a failure to maintain the premises in a reasonably safe manner and failure to exercise due care in obtaining required information for a single day workout pass for the individual responsible for the attack. The lawsuit also claimed that gym failed to remove the attacker for aggressive behavior prior to the attack on Mr. Fresnedo.

Porky’s gym moved for summary judgment seeking to bar Fresnedo’s claim by relying on the pre-injury waiver and release of liability form that Fresnedo signed upon being given his gym membership. The trial judge granted summary judgment to the gym while the Third DCA reversed.

And Now For The Why…

Florida’s Third DCA stated in their opinion that they reviewed the pre-injury release form and were unable to say that it “clearly and unequivocally” waived the gym’s negligence. They also said that the form must be taken in its entirety and not just viewed based on a single paragraph. A lengthy dissent was also written.

In any event, the agreement was several paragraphs long and included:

YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS OR OTHERWISE WHILE YOU ARE ON THE PREMISES OCCUPIED BY ANY OF THE CLUBS.

My thoughts are that the Third DCA was so quick to find this agreement unenforceable because the exculpatory language is as broad as it is. Regardless of my thoughts, the Third DCA referenced the following case law:

• Gillette v. All Pro Sports, LLC, 135 So. 3d 369 (Fla. 5th DCA 2014)(exculpatory clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are STRICTLY CONSTRUED against the party seeking to be relieved of liability)
• Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 2015)(exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away)
• Diodato v. Islamorada Asset Mgmt., Inc., 138 So. 3d 513 (Fla. 3d DCA 2014)(it is a well-settled principle that exculpatory clauses are disfavored and are narrowly construed)

The Third DCA also harkened back to Orkin Exterm. Co. v. Montagano, 359 So. 2d 512 (Fla. 4th DCA 1978) to emphasize that the language of the agreement must be “without a hint of deceptive come-on, or inconsistent clauses.”

In a nutshell, it is clear that an agreement that shifts 100% of any potential responsibility onto the customer (while the customer is paying) is problem for a business. Despite what the dissent has to say, enforcing an agreement such as this one is simply too harsh for a legal result as a matter of law. Instead of being resolved on summary judgment as a “matter of law,” this is a case that is now going to go to a jury (if a settlement is not reached) for them to decide whether the gym was negligent.

This is the correct legal result as there is a dangerous slippery slope in permitting businesses to take people’s money while shifting every risk possible under the sun back over to the paying customer.

Get Help With Your Personal Injury Lawsuit

If you have been injured and the circumstances seem completely unfair, you should talk to a Lakeland personal injury attorney to see whether you have a legal right to do something about it. The right answers are not always obvious.

Call today to schedule your free consultation to talk about your Florida personal injury lawsuit.

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