In a recent post, we discussed the liability of property owners for personal injuries sustained by others while on the property and explained that a person’s ability to recover damages for such an injury can be limited by contractual agreement (waivers, exculpatory clauses, etc.). Such agreements are common not only in traditional landlord-tenant relationships, but across the board and in a whole host of situations. In Straw v. Aquatic Adventures Management Group, Inc., the district court for the Northern District of Florida explains there are certain situations in which an otherwise valid waiver of liability will nevertheless be invalidated. Namely, when the entity seeking to enforce the waiver has committed negligence per se.

Plaintiff Chandra Straw brought the action against Defendant Aquatic Adventures Management Group, Inc., a jet-ski rental company in Panama City. Plaintiff alleged counts of negligence, violation of statutory duties, and vicarious liability stemming from an incident in which she was knocked temporarily unconscious and sustained other injuries after being thrown from a jet-ski that she rented from Defendant during a “dolphin tour,” organized and led by Defendant.

Before trial, Defendant filed a motion for summary judgment, asserting that there is no issue of material fact to be determined at trial and that Defendant is entitled to judgment in its favor as a matter of law because Plaintiff signed a waiver prior to renting the jet-ski. Specifically, the waiver releases Defendant “from any and all liability of any nature for any and all injury,” including that caused by Defendant’s negligence.

The Court began its review of the relevant law by stating that “[w]aivers which relieve a party of liability for their own negligence are generally looked upon with disfavor. However, the general rule is that they are valid and enforceable where the intention is made clear and unequivocal.” In this case, the Court found that the waiver Plaintiff signed is clear, specifically advised her of the dangers associated with jet-ski operation and released Defendant from “all liability.”

Nevertheless, the Court went on to note that a waiver of liability may be invalid where a plaintiff is injured by a defendant’s negligence per se. This legal term refers to a violation of a specific statute enacted to prevent specific types of injuries to a specific group of persons. § 327.54(e)(1) of Florida Statute requires that a person or entity must provide certain pre-rental or pre-ride safety instructions before leasing, hiring or renting a vessel to any person. Violation of this law, according to the Court, constitutes negligence per se.

What is unclear, however, is whether the checklist – containing fifteen boxes, including three marked “avoiding collisions” – that Defendant provided to Plaintiff and which she signed prior to renting the jet-ski, satisfies the safety instructions requirement. As a result, the Court ruled that summary judgment was not proper at this juncture and that the case should be set for trial.

If you were recently injured in an accident and are interested in pursuing a claim, call the South Florida personal injury attorneys at Anidjar & Levine today. Our negligence attorneys represent clients throughout South Florida, including in Boca Raton, Hollywood and Pompano Beach. We are happy to discuss your potential claim in a free initial consultation. You can reach the firm’s Ft. Lauderdale offices at 800-747-3733 or fill out an on-line “Contact Us” form.

Related blog posts:

Florida Construction Accident Injuries: Workers’ Compensation and Personal Injury Lawsuits – Lovering v. Nickerson

Florida Court Weighs in on Non-Monetary Damages for Personal Injury on Cruise Ships – Lobegeiger v. Celebrity Cruises, Inc.

In Florida Personal Injury Cases, The Waiting is Often the Hardest Part – Parkinson v. Kia Motors Corporation