You join a health club. They have you fill out a whole bunch of paperwork, you don’t read the stuff, and you just sign it. A few weeks later you’re on the bench press and the bench collapses. You’re severely injured. You learn that the bench had collapsed three times before your injury and the gym was too cheap to buy another bench.
You always wanted a motorcycle. One day you decide to buy one and you sign-up for a motorcycle safety course on-line. You fill out the paperwork on their website and pay with a credit card. You arrive at the class. There are 30 students and one instructor. Apparently, the other instructors didn’t show up. The teacher didn’t show you how to use your motorcycle. He has you doing exercises on the bike. You didn’t get the clutch down; you lose control and run into a tree causing severe injury.
You decide to go to a new spa to get your haircut and colored. They have you sign a new client packet and inside the packet is a waiver of liability that you sign. Your hair is colored and two days later all your hair falls out. You learn that the color person improperly mixed the chemicals and your scalp was burned severely. The doctor told you that your hair would probably not grow back. You will be wearing wigs the rest of your life.
Arguably all three businesses were negligent. The health club knew there was a problem with the bench and they didn’t take it out of service. The motorcycle school didn’t have enough instructors to help the student, and the colorist wasn’t paying attention when she mixed the color.
The above folks were clearly injured by no fault of their own. They had significant medical expenses and will have physical problems for life. Claims were made to the respective insurance companies and each insurance company denied the claim because the injured folks signed a “waiver of liability” a/k/a “exculpatory clause.”
An exculpatory clause is language in a contract that relieves one party of the legal obligation to use do care. In other words, the other party (health club, motorcycle school, spa) can disclaim responsibility even for their own negligence/carelessness.
Exculpatory clauses are legal and Florida courts will uphold them even if the injuries are severe. One court said exculpatory clauses could operate to absolve a defendant from liability arising out of his own negligence.
Before 2015, there was a split in Florida courts over whether the terms of the exculpatory clause had to say that it explicitly waived “negligent acts” or “negligence.” Earlier this year, however, the Florida Supreme Court said that these clauses do not need magic or specific language like “negligence.” The issue in this case was whether the term “any liability” would suffice to absolve the defendant of responsibility for its negligence, and the Supreme Court said yes.
None of us go into a situation thinking about filing a lawsuit, but if you’re confronted with one of these clauses in paperwork that you’re asked to sign, you may want to think twice about signing the document. If the company will not provide you a service or let you join because you want to put a line through that clause, maybe you’re better off going somewhere else. If you sign the document and something happens you will not be able to receive compensation for your injuries, even if your lawyer is Houdini.