Applegate v. Cable Water Ski, L.C., No. 5D07-458.

CourtCourt of Appeal of Florida (US)
Writing for the CourtTorpy
Citation974 So.2d 1112
PartiesSteven APPLEGATE and Suzanne Applegate, etc., Appellants, v. CABLE WATER SKI, L.C., d/b/a Orlando, etc., Appellee.
Decision Date04 January 2008
Docket NumberNo. 5D07-458.
974 So.2d 1112
Steven APPLEGATE and Suzanne Applegate, etc., Appellants,
v.
CABLE WATER SKI, L.C., d/b/a Orlando, etc., Appellee.
No. 5D07-458.
District Court of Appeal of Florida, Fifth District.
January 4, 2008.
Order Granting Certification February 22, 2008.

[974 So.2d 1113]

Robert E. Bonner of Meier, Bonner, Muszynski, O'Dell & Harvey, P.A., Orlando, for Appellants.

Lindsey C. Brock, III, and Deborah R. Reid of Rumrell, Costabel, Warrington & Brock, LLP, Jacksonville, for Appellee.

TORPY, J.


In this personal injury case, the issue we confront is whether a contract containing an exculpatory clause, signed by a parent on behalf of her child, in favor of a commercial enterprise, is enforceable to defeat the child's action to recover for personal injuries sustained by the child as a result of the enterprise's negligence. Concluding that the contract is not enforceable, we align ourselves with all of the other courts that have weighed in on this precise issue.1

974 So.2d 1114

Five-year-old Jessica Applegate was injured when she fell while she was being pulled on a wakeboard by water ski cable at a camp operated by Appellee. She was struck by the wakeboard of the next customer on the cable. Appellants filed a complaint alleging that Appellee negligently caused injury to Jessica by failing to maintain its premises in a reasonably safe manner, failing to implement appropriate safety procedures, failing to train its employees, failing to properly staff its facility, and negligently designing the water ski cable system. In addition to seeking damages for Jessica's injuries, Jessica's parents sought damages for loss of services, society and affection of their minor child. Based on an exculpatory contract signed by Jessica's mother, on behalf of Jessica and both parents, the trial court granted summary judgment, ruling that the contract unambiguously waived the claims.

This appeal was timely filed and is directed to the limited question of whether the contract is enforceable as it relates to the claims of Jessica. Appellants do not challenge the enforcement of the contract as it relates to the claims of Jessica's parents, so that aspect of the final judgment is affirmed.

Exculpatory contracts are, by public policy, 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. Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006). Nevertheless, because of a counter-vailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Id.; Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B.

Appellants concede that the contract at issue here is unambiguous but urge that the general rule should give way to an overriding public policy of protecting children from damages caused by negligently imposed injuries.2 This argument finds considerable support in the decisional law across the country. See supra note 1. We are persuaded by some of the reasoning advanced by these authorities and also offer our own rationale for our holding.

Indisputably, Florida's public policy manifests a strong intent to protect children from harm. As parens patriae, the state's authority is broader than that of a parent's and may be invoked to limit parental authority when necessary to protect children. Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 399 (Fla.2005). The expression of that policy most relevant here is the legislative limitation on parental authority to settle post-injury claims contained in section 744.301(2), Florida Statutes (2007). By requiring judicial approval of settlements over $15,000, the legislature has manifested a policy of protecting children from parental imprudence in the compromise of their claims for injury. Because parents' legal duty to support their children ends at or near the age of majority, the potential societal burden of an imprudent settlement justifies judicial oversight of the settlement contract.

The case of a pre-injury exculpatory clause may be distinguished from a post-injury settlement in one respect. In a pre-injury

974 So.2d 1115

situation, there is no risk that financial pressure will induce parental imprudence. Instead, the parents' motivation is the potential benefit to the child...

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14 practice notes
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So.2d at 578 ); see Levine, 516 So.2d at 1103 (“The rule is that an exculpatory clause may oper......
  • Kirton v. Fields, No. SC07-1739.
    • United States
    • United States State Supreme Court of Florida
    • December 11, 2008
    ...So.2d 355 Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 404 (Fla.2005)). On the other hand, in Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (Fla. 5th DCA 2008), a case decided after Lantz, the Fifth District aligned itself with the Fourth District in the instant case and held that......
  • Ucf Athletics Ass'n Inc. v. Plancher, No. 5D11–2710.
    • United States
    • Court of Appeal of Florida (US)
    • September 6, 2013
    ...probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008). Such clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, I......
  • UCF Athletics Ass'n Inc. v. Plancher, Case No. 5D11-2710
    • United States
    • Court of Appeal of Florida (US)
    • August 16, 2013
    ...probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008). Such clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, ......
  • Request a trial to view additional results
14 cases
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So.2d at 578 ); see Levine, 516 So.2d at 1103 (“The rule is that an exculpatory clause may oper......
  • Kirton v. Fields, No. SC07-1739.
    • United States
    • United States State Supreme Court of Florida
    • December 11, 2008
    ...So.2d 355 Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 404 (Fla.2005)). On the other hand, in Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (Fla. 5th DCA 2008), a case decided after Lantz, the Fifth District aligned itself with the Fourth District in the instant case and held that......
  • Ucf Athletics Ass'n Inc. v. Plancher, No. 5D11–2710.
    • United States
    • Court of Appeal of Florida (US)
    • September 6, 2013
    ...probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So.2d 1112, 1114 (Fla. 5th DCA 2008). Such clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, I......
  • UCF Athletics Ass'n Inc. v. Plancher, Case No. 5D11-2710
    • United States
    • Court of Appeal of Florida (US)
    • August 16, 2013
    ...probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008). Such clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, ......
  • Request a trial to view additional results

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