2d 669 (Fla. 1st D.C.A. 1998). Mr. 20 Bert Smith Oldsmobile, Inc. v. Franklin, 400 So. The Fundamentals of the Assumption of Risk Clause. 1974), cert. 8) Courts are more inclined to enforce monetary limitations on liability as opposed to extinguishing liability. Luria, 384 So. THERE ARE ABSOLUTELY NO IMPLIED WARRANTIES OF ANY KIND COVERING THIS PROPERTY. . This supports the proposition that the clause was the result of the bargaining process reflecting the intention of the parties. 52 Id. See Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. For decades, Florida courts have wrestled with issues relating to the enforcement of exculpatory clauses where liability arises from personal injury, real estate, construction, and commercial disputes. Exculpatory Clause. %PDF-1.3 No warranties or guaranties are given as to consumer products as defined in 15 U.S.C., §2301 et seq. Assumption of Risk. 69 Fla. Stat. Courts are more likely to find an exculpatory clause unenforceable as applied to future acts. 68. 2d 633 (Fla. 1999). 47 Id. 1994), the court enforced the following “no damage for delay” clause: “If the Contractor is delayed at any time in the progress of the Work by any act or neglect of Owner or by any contractor employed by Owner, or by changes ordered in the scope of the Work, or by fire, adverse weather conditions not reasonably anticipated, or any other causes beyond the control of the Contractor, then the required completion date or duration set forth in the progress schedule shall be extended by the amount of time that the Contractor shall have been delayed thereby. It is also noteworthy that similar provisions declare illegal and unenforceable indemnification provisions that obligate one party to indemnify a public agency for its own negligence. How to Write an Assumption of Risk Clause. Condominium documents and purchase agreements often contain provisions that disclaim all warranties except the statutory warranties described in Fla. Stat.§718.203 (2000). 53 See also Lantz v. Iron Horse Saloon, Inc. 717 So. 2d 947 (Fla 4th DCA 1980), an alarm company was held not responsible for $135,000 in losses arising from alleged breach of contract, breach of implied warranties, and negligence in installing and maintaining a burglar alarm system. As a result, the participant filed a lawsuit against the race promoters. 29 Id. 2d at 948. Except for this express warranty, THE PROPERTY IS SOLD ‘AS IS.’ “THERE ARE NO IMPLIED WARRANTIES COVERING THIS PROPERTY. The best clauses are simple and direct. §725.06(3) (2001). 68 Id. 63 Valhal Corp. v. Sullivan Associates, Inc. 44 F.3d 195, 198 (3d Cir. 9) The document containing the exculpatory language should be properly executed and witnessed. The validity of such contracts is a separate issue from assumption of risk. 67 In Marriott Corp. v. Dasta Construction Co., 26 F.3d 1057 (11th Cir. This express warranty is the only warranty covering this property. 2d at 629 Although applicable to residential property the doctrine of “caveat emptor” remains applicable to the sale of commercial real estate. Risk Agreement 34 Id. 1991). Exculpatory provisions in residential leases have been declared illegal and unenforceable to the extent that they attempt to relieve the landlord of liability Fla. Stat. at 401. THERE IS NO IMPLIED WARRANTY OF HABITABILITY OR OF GOOD WORKMANLIKE CONSTRUCTION. 1990), rev’d, 581 So. The language released the operator from liability “whether caused by negligence or otherwise.” 56 Theis, 571 So. 4) Specify whether the disclaimer, indemnity provision, or release is for past wrongful acts or future wrongful acts. 24 Fuentes v. Owen, 310 So. Assumption of Risk_SAMPLE FORM 2d 206 (Fla. 1976). 16 Sellers of residential real estate face greater challenges when attempting to disclaim any duty to disclose the existence of facts that may materially affect the value of the property. 1980); Ivey Plants, Inc. v. F.M.C. I, on behalf of myself, my heirs, executors, agents, assigns, and representatives, hereby indemnify, release and forever hold harmless Roxbury Arts Group, Inc., a not-for-profit corporation, as well as its directors, employees and Assumption of Risk is a type of defense available for most personal injury and negligence lawsuits. 70 Fla. Stat. Furthermore, the clause must disclose the risk being relinquished by the party that has executed the clause. 2d 1309 (Fla 1986), dealing with express assumption of the risk which waives only those risks inherent in the sport itself. & Sports L. Rev. “initialing this contract clause, the purchaser(s) acknowledge(s) that this clause has been read and fully understood, and that the purchaser(s) has had the chance to ask questions about its meaning and significance. 2d 678 (Fla. 3d D.C.A. 15 Id. Against this factual backdrop, the court barred recovery, holding that the above clause was clear and unequivocal to release the race promoters from their own negligence.60, In a line of burglar alarm cases, exculpatory clauses utilized to defeat claims for consequential losses have been upheld against claims of breach of contract and gross negligence.61 For example, in L. Luria & Son, Inc. v. Alarmtec International Corp., 384 So. 2d 168 (Fla. 1991); Tout v. Hartford Accident and Indemnity Co., 390 So. 4 0 obj In Valhal, the exculpatory clause limited the architect’s liability to the fee paid or $50,000 but provided an option to increase insurance liability by the owner paying a surcharge for the increased insurance premiums. 61 Continental Video Corp. v. Honeywell, Inc., 422 So. The person executing the document should initial the exculpatory clause. “Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonable requested in connection therewith.”. 387, 390 (M.D. 5 Fla. Stat. 2d 943 (Fla. 2d D.C.A. Specimen copies of all manufacturer’s warranties which will be passed through to Buyer at closing and which are not expressly warranted by Seller have been made readily available for Buyer’s review in the ‘Binder’ located in the sales office and Buyer acknowledges disclosure of such warranties and the location thereof by Seller. 7) Draft the document to provide an option to the person accepting the risk to elect to acquire more protection by paying additional fees. Tenant’s Assumption of Risk and Waiver. “EXCEPT FOR THE WARRANTIES CONTAINED IN THE DEED OF CONVEYANCE AND ANY WRITTEN WARRANTIES DELIVERED AT CLOSING, NO WARRANTIES, EXPRESSED OR IMPLIED, REPRESENTATIONS, UNDERSTANDINGS, GUARANTIES OR PROMISES HAVE BEEN MADE TO OR RELIED UPON BY BUYER IN MAKING THE DETERMINATION TO EXECUTE AND CLOSE PURSUANT TO THIS AGREEMENT AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND HABITABILITY, AND ALL WARRANTIES IMPOSED BY STATUTE (EXCEPT TO THE EXTENT THEY CANNOT BE DISCLAIMED) ARE DISCLAIMED. Under these circumstances, the agreement should include a “cooperation clause” requiring the indemnified party to supply documents and arrange for witnesses to be available for consultation as well as for testimony. 37 Id. Situations that encompass assumption of the risk have been classified in three broad categories. 1978), the court instructed as follows: “We must require draftsmen of all contracts which contain them [exculpatory clauses] to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses.” 2 Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. What kinds of injuries can be covered by an assumption of risk agreement? 11 In evaluating exculpatory language, Florida has adopted a six-part “public interest” test to evaluate whether a public interest factor will invalidate an exculpatory clause when: “(1) it concerns a business of the type generally suitable for public regulations; “(2) the party seeking exculpation is engaged in performing a service of great public importance which is often a matter of practical necessity for some members of the public; “(3) the party holds himself out as willing to perform this service for any member of the public who seeks it; “(4) as a result of the essential nature of the service and the economic setting of the transaction, the party seeking exculpation possesses a decisive advantage in bargaining strength; “(5) in exercising superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation; and “(6) as a result of the transaction the person or property of the purchaser is placed under control of the party to be exculpated.” Banfield, 589 So. Assumption of risk is an affirmative defense commonly used in civil lawsuits to argue that the defendant is not liable for the plaintiffs damages, as the plaintiff knowingly took part in a dangerous activity. In order to obtain the benefits of this express warranty, the purchaser(s) must give written notice of any defect within year(s) from the date of sale. at 1319. Toward that end, the form containing the exculpatory language should be dated and witnessed. The drafter should be mindful of statutory prohibitions applicable to exculpatory clauses. 45 Id. 2d 155 (Fla. 3d D.C.A. 2d 60 (Fla. 4th D.C.A. assumption of risk. 32 O’Connell 413 So. 67 This factor evidences an intent that the existing risk was appreciated and negotiated between the parties. 2d at 678. 2d 487 (Fla. 1979). 2d 625 (Fla. 1986), in which the Florida Supreme Court announced as follows: “Accordingly, we hold that where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. Before you begin, it is important that you have performed a full risk assessment on your business, and fully outlined in this clause all of the potential risks as any gaps could result in a lawsuit loophole. Florida courts generally enforce these clauses subject to certain exceptions such as delays not reasonably contemplated by the parties and active interference by the owner. Klingemann shall not, except for his intentional … 38 Dilallo v. Riding Safety, Inc. 687 So. 1982). 2d 786 (Fla. 1974); Middleton 266 So. This paragraph shall survive closing.” 6 Fla. Stat. 2d 318 (Fla. 4th D.C.A. In fact, several decisions have similarly followed this logic in the context of limiting a design professional’s liability for damages.63. Recognizing that the economic stakes often are high, counsel must be aware of the pitfalls associated with the drafting and interpretation of such clauses. The jury returned a verdict in excess of $12,000,000 in favor of the plaintiff. denied, 456 So. This duty is equally applicable to all forms of real property, new and used.”480 So. 1985). In Florida Power & Light Co. v. Mid-Valley, Inc.,736 F.2d 1316 (11th Cir. 12) Indemnification agreements should include provisions to deal with an arrangement where one party has the duty to defend and hold harmless the other party in litigation. The form was folded over concealing the upper half of the document where the printed exculpatory language appeared.47 As a result, the critical language was not visible when the patron executed the document.48 The language released the raceway from “all liability in the event of an injury to a signatory in any restricted area.”49 Thereafter, the patron was struck by a racecar and initiated a lawsuit against the raceway.50 In response, the raceway defended based upon the existence of the patron’s signature on the release.51. 59 Id. Frequently, these agreements contain a provision that stipulates that the document is the joint product of the parties. denied, 385 So. 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