DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ETHAN ELALOUF,
Appellant,
v.
SCHOOL BOARD OF BROWARD COUNTY,
a political subdivision of the State of Florida,
Appellee.
No. 4D19-3272
[January 6, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE17-
022265 (13).
Donna Greenspan Solomon of Solomon Appeals, Mediation &
Arbitration, Fort Lauderdale, for appellant.
Michael T. Burke of Johnson, Anselmo, Murdoch, Burke, Piper &
Hochman, P.A., Fort Lauderdale, for appellee.
Leonard E. Ireland Jr. of Clayton-Johnston, P.A., Gainesville, for
Amicus Curiae FHSAA.
LEVINE, C.J.
Appellant, a high school athlete, appeals a final judgment in favor of
the School Board of Broward County (“school board”) finding that an
executed pre-game release barred his claim of negligence against the
school board. Appellant now contends that the release is ambiguous and
unenforceable and that, for public policy reasons, it should be treated no
differently than a pre-injury release for commercial establishments. We
affirm and find that appellant did not preserve below the claims he now
argues. Further, even if appellant had preserved his claims, his arguments
are without merit.
Appellant played on his high school varsity soccer team. During a
varsity soccer game, another player hit appellant while he attempted a shot
on goal. The force of the hit threw appellant into an unpadded cement
barrier near the soccer field.
Prior to playing in the varsity soccer game, appellant and his father
voluntarily signed a “Consent and Release from Liability Certificate”
allowing appellant to play soccer for his high school. In the student
acknowledgment section of the release, appellant agreed to “release and
hold harmless [the school board] of any and all responsibility and liability
for any injury or claim resulting from such athletic participation. . . .” The
parental consent section of the release contained the same language. The
release also included a section in large bold font stating the following:
EVEN IF . . . THE SCHOOL DISTRICT . . . USES REASONABLE
CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE
YOUR CHILD MAY BE SERIOUSLY INJURED . . . BY
PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE
CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH
CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS
FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND
YOUR RIGHT TO RECOVER FROM . . . THE SCHOOL
DISTRICT . . . IN A LAWSUIT FOR ANY PERSONAL INJURY .
. . THAT RESULTS FROM THE RISKS THAT ARE A NATURAL
PART OF THE ACTIVITY. . . .
Appellant sued for negligence, claiming the school board should have
covered the cement barrier and not had the barrier close to the field. The
school board moved for summary judgment, arguing the release barred
appellant’s action under Krathen v. School Board of Monroe County,
972
So. 2d 887 (Fla. 3d DCA 2007). In his response to the school board’s
motion for summary judgment, appellant argued only that the release
neither mentioned the word “negligence” nor released the school board
from its own negligence. Appellant elaborated that leaving a cement
barrier uncovered near the soccer field was a risk that could not be
considered a natural part of the activity. The trial court granted summary
judgment relying on Krathen and entered final judgment for the school
board. This appeal follows.
Orders entering summary judgment are reviewed de novo. Kokhan v.
Auto Club Ins. Co. of Fla.,
297 So. 3d 570, 575 (Fla. 4th DCA 2020). The
enforceability of a pre-injury release arising from undisputed facts is
reviewed de novo. Brooks v. Paul,
219 So. 3d 886, 887 (Fla. 4th DCA 2017).
“An exculpatory clause purports to deny an injured party the right to
recover damages from the person negligently causing his injury.” Id.
2
(citation omitted). “Such provisions are deemed to be unambiguous and
enforceable when the language unequivocally demonstrates a clear and
understandable intention for the defendant to be relieved from liability
such that an ordinary and knowledgeable person will know what he or she
is contracting away.” Pillay v. Pub. Storage, Inc.,
284 So. 3d 566, 569 (Fla.
4th DCA 2019).
Initially, the school board argues appellant did not preserve his claims
for appeal. “A litigant seeking to overturn a lower court’s judgment may
not rely on one line of argument in the trial court and then pursue a
different line of argument in the appellate courts.” Sanchez v. Miami-Dade
Cty.,
286 So. 3d 191, 195 (Fla. 2019). Absent fundamental error,
arguments must be preserved.
Id.
Here, appellant did not preserve his claims for appeal. First, appellant
did not argue below any public policy reasons for not treating the release
differently than a pre-injury release for a commercial business. Second,
and more importantly, appellant did not argue below that the language in
the release was ambiguous or caused him confusion. Rather, appellant
merely argued that the release did not include the word “negligence” and
thus nothing in the release operated to excuse the school board’s own
negligence. The entire tenor of appellant’s response in opposition to the
school board’s motion for summary judgment centered on the absence of
the word “negligence.” 1
We find no fundamental error because the trial court did not commit
error that went to the heart of the judicial process. See Fleischer v.
Fleischer,
586 So. 2d 1253, 1254 (Fla. 4th DCA 1991). In this case,
appellant pursued one line of argument below, and then pursued a
different line of argument on appeal. Sanchez, 286 So. 3d at 195.
1
The dissent relies on language in the response wherein appellant stated that
“the release was neither clear and unequivocal nor was there any mention of the
School Board, their agents and/or employee’s own negligence or that their agents
and/or employees’ negligence being excluded.” Although the quote uses the
phrase “clear and unequivocal,” the clear and unequivocal language was referring
to the absence of any mention of negligence. In other words, appellant argued
that the release was not clear and unequivocal because of the omission of the
word negligence. Indeed, the sentence immediately preceding the language
quoted by the dissent stated that “‘the intent to relieve a party from responsibility
for its own negligence must be clearly expressed in a release . . .’ and ‘appellee’s
negligence must be specifically mentioned.’”
3
Further, even if appellant had preserved his claims for appeal, the
release is unambiguous and enforceable. On this point, Krathen is
instructive. In Krathen, a high school cheerleader sustained injuries
during a practice at her school’s gymnasium.
972 So. 2d at 888. The
cheerleader alleged the school board was negligent in failing to place
protective mats on the floor during practice.
Id. Prior to the incident, the
cheerleader signed a “Consent and Release from Liability Certificate,”
releasing the school board from liability for “any injury or claim resulting
from . . . athletic participation.”
Id. The Third District determined the
language in the release “clearly and unambiguously” released the school
board from liability for negligence claims.
Id.
In this case, the release signed by appellant was a “Consent and Release
from Liability Certificate” that released the school board from liability for
“any injury or claim resulting from . . . athletic participation.” Like in
Krathen, this language “clearly and unambiguously” released the school
board from liability for negligence claims. Because appellant suffered
injuries resulting from athletic participation, the school board would be
held harmless from liability. Accordingly, the trial court did not err in
granting summary judgment in favor of the school board. 2
Appellant cites to cases finding an exculpatory clause ambiguous when
qualifying provisions in the release created confusion as to what claims
were being released. Brooks,
219 So. 3d at 887 (invalidating an
exculpatory clause when disclaimer was qualified by a statement that the
surgeon would “do the very best to take care of [the patient] according to
community medical standards”); Murphy v. Young Men’s Christian Ass’n of
Lake Wales, Inc.,
974 So. 2d 565, 566-68 (Fla. 2d DCA 2008) (finding
ambiguity when the exculpatory clause excluded “any claims based on
negligence” but also provided that YMCA would take “every reasonable
precaution” and concluding that a reasonable reader might be led to
believe that the waiver of liability extended only to claims for injuries that
were unavoidable).
2 The school board argued below that the release signed by appellant was the
exact same release in Krathen. Although Krathen does not replicate the entire
release in that case, the essence of both releases holds the school board harmless
for any injury or claim resulting from athletic participation. The dissent argues
that the release in this case contains additional language that the release in
Krathen did not, but the record on appeal does not contain the release in Krathen.
Where a document is not part of the record, it will not be considered by the
appellate court. See Hughes v. Enter. Leasing Co.,
831 So. 2d 1240, 1241 (Fla.
1st DCA 2002).
4
Brooks and Murphy determined the qualifying language created
confusion because the entity seeking to be released from liability agreed to
exercise reasonable care in providing the activity despite the release’s
broad disclaimer of liability. Unlike Brooks and Murphy, the qualifying
statements here clearly warn that serious injuries can occur even if
reasonable precautions are taken.
In Merlien v. JM Family Enterprises, Inc.,
301 So. 3d 1 (Fla. 4th DCA
2020), this court found clear and unambiguous a disclaimer that
specifically released all rights to make a claim and that did not suggest the
company would take responsibility for the releasor’s safety. Like the
release in Merlien, the disclaimer here releases the school board from
liability for all claims arising from athletic participation. The wording of
the release unequivocally demonstrates a clear and understandable
intention for the school board to be relieved from liability.
The fact that the language releasing the school board from “any injury
or claim resulting from . . . athletic participation” was a smaller font size
than the portion of the release addressing inherent dangers does not
somehow change its meaning or render the release unclear or ambiguous.
“[O]ne who signs a contract is presumed to know its contents . . . .” All
Fla. Sur. Co. v. Coker,
88 So. 2d 508, 511 (Fla. 1956). In interpreting a
contract, a court must give effect to all its terms. Belen Sch., Inc. v.
Higgins,
462 So. 2d 1151, 1153 (Fla. 4th DCA 1984). This is not a case
where terms were “hidden in a maze of fine print.” Bellsouth Mobility LLC
v. Christopher,
819 So. 2d 171, 173 (Fla. 4th DCA 2002). The entire release
encompassed less than a single page.
Appellant lastly now argues on appeal that the trial court erred in
entering summary judgment when no policy reason was shown to treat the
release any differently from a commercial pre-injury release, which is
unenforceable when executed by a parent on behalf of a minor. In support,
appellant relies on Kirton v. Fields,
997 So. 2d 349 (Fla. 2008). Even if this
issue was preserved, Kirton is inapposite.
In Kirton, the court held that a “pre-injury release executed by a parent
on behalf of a minor child is unenforceable . . . in a tort action arising from
injuries resulting from participation in a commercial activity.”
Id. at 358.
The court specifically did not extend this holding to a pre-injury release
involving a non-commercial activity provider.
Id. at 350 n.2. Accordingly,
the public policy reasons in Kirton would not apply in the case of a non-
commercial activity provider like the school board.
5
In summary, we affirm and find that appellant did not preserve his
claims below. Even if appellant had preserved his claims, the release
signed by appellant is unambiguous and enforceable.
Affirmed.
ARTAU, J., concurs.
WARNER, J., dissents with opinion.
WARNER, J., dissenting.
I dissent for two reasons. First, the trial court erred as a matter of law
in relying on an assertion by appellee’s counsel as fact in the summary
judgment hearing that the release in this case was the same as the release
in Krathen v. School Board of Monroe County,
972 So. 2d 887 (Fla. 3d DCA
2007).
Second, I conclude that the release did not clearly and specifically
release the appellee for the negligence which occurred in this case. Unlike
the majority, I find that this argument was preserved. Therefore, I would
also reverse on the merits.
Appellant was injured while playing in a soccer match at Piper High
School, part of the Broward County School District. During the game,
appellant was tackled by a defensive player. The hit sent appellant sliding
headfirst on the grass. He slid out of the field of play and hit a cement
block just a few feet outside of the lines of the field, severely injuring his
hand and wrist. The cement barrier was part of a high jump pit or shot
put pit, situated very close to the soccer field lines. The block was not
padded in any way.
Appellant and his father filed suit against the School Board alleging
negligence in leaving an unpadded concrete block so close to the soccer
field that it posed a danger to the players. The School Board moved for
summary judgment based upon a release signed by the appellant and his
father. In very small print, the release stated that the participant
acknowledged the risks of athletic participation and accepted
responsibility for his own welfare “with full understanding of the risks
involved.” His father signed that part of the release, in which he also
agreed to release the school “of any and all responsibility and liability for
any injury or claim resulting from such athletic participation, and agreed
to take no legal action against the FHSAA because of any accident or
6
mishap involving the athletic participation of my child.” The release then
includes the following in large type, bolded and capitalized language:
READ THIS FORM COMPLETELY AND CAREFULLY. YOU
ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A
POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING
THAT, EVEN IF MY CHILD’S/WARD’S SCHOOL, THE
SCHOOLS AGAINST WHICH IT COMPETES, THE SCHOOL
DISTRICT, THE CONTEST OFFICIALS AND FHSAA USES
REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE
IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED
OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE
THERE ARE CERTAIN DANGERS INHERENT IN THE
ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED.
BY SIGNING THIS FORM YOU ARE GIVING UP YOUR
CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM MY
CHILD’S/WARD’S SCHOOL, THE SCHOOLS AGAINST
WHICH IT COMPETES, THE SCHOOL DISTRICT, THE
CONTEST OFFICIALS AND FHSAA IN A LAWSUIT FOR ANY
PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD
OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE
RISKS THAT ARE A NATURAL PART OF THE ACTIVITY.
Thus, the capitalized language in large type stresses that there are dangers
inherent in the activity which cannot be avoided and are a natural part of
the activity.
Appellant filed a response to the motion arguing that the release did
not release the appellee from its own negligence unless the instrument
clearly and specifically provides for a limitation of liability for negligence.
He noted that the release specified that it applied to “risks that are a
natural part of the activity,” and he argued that leaving an unpadded
cement pit close to the field of play was not a natural part of the activity of
soccer. Most of his response centered around inapplicable and
disapproved case law that held that a release must include “negligence”
within its terms to be effective to release a party from its own negligence.3
However, he did add:
3 He cited to Witt v. Dolphin Research Center, Inc.,
582 So. 2d 27 (Fla. 3d DCA
1991). Witt cites to Van Tuyn v. Zurich American Ins. Co.,
447 So. 2d 318 (Fla.
4th DCA 1984), which is also cited in appellant’s response. Van Tuyn in turn
was disapproved of by the supreme court in Sanislo v. Give Kids the World, Inc.,
157 So. 3d 256 (Fla. 2015). In Sanislo, the court held that “the absence of the
7
In our case the release was neither clear and unequivocal nor
was there any mention of the School Board, their agents
and/or employee’s own negligence or that their agents and/or
employees’ negligence being excluded. The writing in parts of
the Release signed by [appellants] is so tiny, it is barely legible.
Any ambiguities in a contract which releases a party from
liability is strictly construed against the release.
At the summary judgment hearing, appellee relied solely on Krathen,
contending that it was directly on point and involved the same release as
in this case. The court questioned appellee’s attorney on this point, and
the attorney told the court that the release was the same FHSAA release.
Appellant’s attorney questioned that assertion, noting there was nothing
in the opinion itself to show that it was the same. Stating that it was going
on counsel’s word that this was the same release, the court then granted
the motion based upon Krathen.
As noted in the majority opinion, when considering “the enforceability
of [a] pre-injury release [] arising from undisputed facts, the standard of
review is de novo.” Brooks v. Paul,
219 So. 3d 886, 887 (Fla. 4th DCA
2017) (citation omitted). While the facts of this incident and the contents
of this release clause are undisputed, it was disputed at the hearing that
the release in the Krathen case was identical to the release in this case.
“Trial judges cannot rely upon [counsel’s] unsworn statements as the
basis for making factual determinations[.] Olson v. Olson,
260 So. 3d 367,
369 (Fla. 4th DCA 2018) (quoting Smith v. Smith,
64 So. 3d 169, 171 (Fla.
4th DCA 2011)). An attorney’s statements are not evidence. Olson, 260
So. 3d at 369. The amicus brief of the Florida High School Athletic
Association (FHSAA) informs us that the additional bolded and capitalized
language quoted in the majority opinion was not in the Krathen case. For
such a significant disputed fact, the trial court should have denied the
motion. Nevertheless, for the purpose of my dissent, I accept the FHSAA
statement that the capitalized language above was not included in the
Krathen release.
I would find that appellant did preserve the argument raised on appeal
by arguing that the agreement was not clear and unequivocal. Appellant
argued that it did not clearly and specifically release negligence, and he
referred to that portion of the release which refers to risks that are a
terms ‘negligence’ or ‘negligent acts’ in an exculpatory clause does not render the
agreement per se ineffective to bar a negligence action.” Id. at 271.
8
natural part of the activity. He noted that the danger of a concrete barrier
so close to the field of play is not a natural part of the activity or an
inherent risk of participation in the sport. The brief likewise argues that
the language of the release does not clearly include the release of
negligence for risks not inherent in the sport. Because our review of
summary judgments is de novo, I would hold that the argument made in
appellant’s response to the motion for summary judgment preserved this
issue for appeal.
The majority opinion properly relies on the statement in Brooks v. Paul,
219 So. 3d 886 (Fla. 4th DCA 2017), as the rule of law to be applied to
releases containing exculpatory clauses, as this one does. Brooks states:
“An exculpatory clause purports to deny an injured party the
right to recover damages from the person negligently causing
his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen,
LLP,
832 So. 2d 270, 272 (Fla. 4th DCA 2002) (quoting
O’Connell v. Walt Disney World Co.,
413 So. 2d 444, 446 (Fla.
5th DCA 1982)). “Exculpatory clauses are disfavored in the
law because they relieve one party of the obligation to use due
care and shift the risk of injury to the party who is probably
least equipped to take the necessary precautions to avoid
injury and bear the risk of loss.” Loewe v. Seagate Homes,
Inc.,
987 So. 2d 758, 760 (Fla. 5th DCA 2008). Further, such
clauses “will be strictly construed against the party claiming
to be relieved of liability.” Murphy v. Young Men’s Christian
Ass’n of Lake Wales, Inc.,
974 So. 2d 565, 567–68 (Fla. 2d
DCA 2008). “ ‘Such clauses are enforceable only where and
to the extent that the intention to be relieved was made clear
and unequivocal in the contract, and the wording must be so
clear and understandable that an ordinary and knowledgeable
party will know what he is contracting away.’ ”
Id. at 568
(quoting Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co.,
580
So. 2d 628, 634 (Fla. 1st DCA 1991)).
Brooks, 219 So. 2d at 887–88. 4 In Brooks, we considered an exculpatory
release signed by a patient for her doctor’s treatment. In it, the patient
4 Appellant did not cite to Brooks in his memorandum to the trial court, although
he did cite to O’Connell v. Walt Disney World Co.,
413 So. 2d 444 (Fla. 5th DCA
1982), which is cited in Brooks. There is nothing wrong with citing to older case
law. Sometimes it provides the best support for a position. But it is always
helpful to the court, both trial and appellate, when those cases are brought up to
9
agreed not to sue the doctor because “I realize that Dr. Michael D. Paul
and his staff will do the very best to take care of me according to
community medical standards.” Id. at 887. This statement was in smaller
type below a statutory notice. The inclusion of the foregoing sentence
made the release ambiguous, because it could be interpreted as explaining
that the doctor would not be liable for injuries which occurred without any
fault on his part, not those in which he was at fault. Id.
Brooks cited to Goyings v. Jack and Ruth Eckerd Foundation,
403 So.
2d 1144 (Fla. 2d DCA 1981), disapproved on other grounds by Sanislo v.
Give Kids the World Inc.,
157 So. 3d 256 (Fla. 2015). In Goyings, the court
also found that a release did not clearly and unequivocally absolve the
releasee from its own negligence. There the release clause provided:
It is further agreed that reasonable precautions will be taken
by Camp to assure the safety and good health of said boy/girl
but that Camp is not to be held liable in the event of injury,
illness or death of said boy/girl, and the undersigned, does
fully release Camp, and all persons concerned therewith, for
any such liability.
403 So. 2d at 1145–46. The precatory language that the camp would take
reasonable care gave the exculpatory clause a different meaning.
By their own choice of language, appellees agreed to take
reasonable precautions to assure Leigh Anne’s safety. This
duty to undertake reasonable care expressed in the first part
of the provision would be rendered meaningless if the
exculpatory clause absolved appellees from liability. We
cannot ignore this language because all terms of a contract
provision must be read as a whole to give every statement
meaning.
Id. at 1146. The court held that the language was not clear and
unequivocal, nor explicit.
Id. Therefore, it did not preclude the negligence
claim against the appellee.
Id.
Brooks and Goyings were distinguished by this court in Merlien v. JM
Family Enterprises, Inc.,
301 So. 3d 1, 5 (Fla. 4th DCA 2020). In both
cases, the Merlien court noted that “additional language” in the releases
created the ambiguity. In Brooks, the disclaimer was “qualified” by the
date with citations to more current case law, particularly out of the appellate
court in whose district the trial court presides.
10
additional language, rendering it ambiguous.
Id. In Goyings, it was also
qualified by language indicating that the camp would take reasonable
precautions to assure the safety of campers.
Id. In Merlien, the release
contained no qualifications to the disclaimer.
Id.
This case is more like Brooks and Goyings. The release states that the
participant and his parents are agreeing not to sue for any mishap with
full understanding of the risks involved in athletic competition. But that
part is in tiny print. The large print states that the participant and parent
acknowledge that even with reasonable care, the participant may still be
injured by participating, because “there are certain dangers inherent in the
activity which cannot be avoided or eliminated.” It further states that the
participant and parent are giving up their right to sue the appellee for
injuries which result “from the risks that are a natural part of the activity.”
As pointed out both at trial and on appeal, the release is designed to alert
the parties that there are many dangers inherent in athletic competition,
and the athlete and his/her parents release the appellee from liability for
injuries from activities inherent in the competition.
This qualifying language, which by its capitalization and size appears
far more important than the small print language releasing liability, does
not clearly absolve appellee from its own negligence, when that negligence
is not a natural part of the activity and where the danger is not inherent in
the sport. In this case, appellant was injured when he slammed into a
concrete barrier only feet from the soccer field. This type of risk is not
inherent in the sport, nor a natural part of the activity. Being hit by a
defensive player is and sliding out of bounds might be inherent in the
sport, but no one anticipates that the area outside the field of play will
have dangerous traps.
Because of the additional language in this release, Krathen is
inapposite. The release in Krathen released the school board from “any
injury or claim resulting from . . . athletic participation.”
972 So. 2d at
888. It did not include language that the parent was agreeing not to sue
for injuries resulting from risks which were a natural part of the activity.
Amicus FHSAA explains that this language was added to the form after the
2010 amendment to section 744.301(3)(b), Florida Statutes, which
required this language in any release by a commercial enterprise. Thus,
it is clear that it was not in the Krathen release, which was executed well
prior to the amendment of the statute.
The additional language changes the instant release from the Krathen
release to make it unclear, just as the extra sentences did in Brooks and
Goyings. A reasonable person would not understand that he was giving
11
up his right to seek damages for injuries suffered by appellee’s own
negligence in placing dangerous obstructions outside the field of play
without providing protection for the players.
I would reverse the summary final judgment and remand this case for
further proceedings.
* * *
Not final until disposition of timely filed motion for rehearing.
12
