Banfield v. Louis

• Decision Date: 20 November 1991
• Docket Number: 90-2841,Nos. 90-1233,s. 90-1233
• Citation: 589 So.2d 441
• Parties: Susan BANFIELD, Appellant, v. Songea LOUIS, Cat Sports, Inc., etc., et al., Appellees. 589 So.2d 441, 16 Fla. L. Week. D2909
• Court: Florida District Court of Appeals

Page 441

589 So.2d 441

Susan BANFIELD, Appellant, v. Songea LOUIS, Cat Sports, Inc., etc., et al., Appellees.

Nos. 90-1233, 90-2841.

589 So.2d 441, 16 Fla. L. Week. D2909

District Court of Appeal of Florida Fourth District.

Nov. 20, 1991.

Jack H. Vital, III, Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Larry Klein, Klein & Walsh, P.A., West Palm Beach, for appellant.

Bonita L. Kneeland, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Bon's Barricades, Inc.

Anthony A. Balasso, Walton Lantaff Schroeder & Carson, Fort Lauderdale, for appellee Mike's Cyclery, Inc.

Marcia E. Levine, Fazio, Dawson, DiSalvo, Cannon, Levine, Abers & Podrecca, Fort Lauderdale, for appellees Anheuser-Busch, Quaker Oats, Intern. Swimming Hall of Fame, Triathlon Federation, Mike Eaccarino, Cat Sports, Inc. and City of Fort Lauderdale.

PER CURIAM.

This is a consolidated appeal from a final judgment entered in favor of defendants/appellees Anheuser-Busch, Inc., The Quaker Oats Company, International Swimming Hall of Fame, Inc. ("the Hall of Fame"), Triathlon Federation, U.S.A. ("the Federation"), Mike Eaccarino, CAT Sports, Inc., Mike's Cyclery, Inc., and the City of Fort Lauderdale, and a final summary judgment entered in favor of defendant/appellee, Bon's Barricades, Inc. We affirm.

On April 2, 1985, appellant Susan Banfield completed and signed an "official entry form" in California to compete as a professional in the 1985 Bud Light United States Triathlon Series. The competitions were scheduled to be held in Fort Lauderdale, Texas, Los Angeles, San Francisco, Phoenix, Baltimore/Washington D.C., Portland, Detroit, Denver, Chicago, Boston, and San Diego. On Friday, May 19, 1985, two days before the Fort Lauderdale race, Banfield rode along the entire bicycle course along with some of the other entrants. The following Sunday, May 21, 1985, Banfield was operating her bicycle on Broward Boulevard in Fort Lauderdale, the designated bicycle race course, when she was struck and seriously injured by a motor vehicle owned and operated by defendant Songea Louis.

Banfield subsequently filed suit seeking to recover damages for the alleged negligence of Louis and the sponsors, organizers, and promoters of the triathlon, namely CAT Sports, Anheuser-Busch, Quaker Oats, the Hall of Fame, the Federation, Mike's Cyclery, its owner Michael Eaccarino, and the City of Fort Lauderdale. Banfield alleged that these individuals and organizations breached their duty to Banfield by failing to establish and maintain a safe bicycle course and failing to properly control traffic around the course. Banfield also named Bon's Barricades in the complaint, alleging that Bon's Barricades, as an agent or employee of the sponsors and promoters, negligently failed to properly place cones and barricades along the race course.

The defendants/appellees moved for summary judgment, alleging that no genuine issue of material fact remained for trial because Banfield signed a "release" or "waiver" of any negligence claim against the race sponsors, organizers, and promoters, as well as their agents, upon submission of her entry form. The entry form contained the names of the twelve cities where the U.S. Triathlon Series would be held during 1985, and the entrant could choose to participate in as many of these separate events as he or she wished. Banfield indicated that she wished to participate in ten of the twelve competitions. The entry form did not specify the actual dates and times that the events would be held. Banfield chose to compete in the pro division for cash and prizes rather than in the age group division for "age-group awards."

Just above the signature line, the entry form contained the following language:

WAIVER: READ CAREFULLY BEFORE SIGNING

In consideration for the acceptance of my entry, I, for my heirs, executors and administrators, release and forever discharge the United States Triathlon Series (U.S.T.S.), CAT Sports, Inc., Anheuser-Busch, the Quaker Oats Company, the city, county, state or district where the event is held and all sponsors, producers, their agents, representatives, successors and assigns of all liabilities, claims, actions, damages, costs or expenses which I may have against them arising out of or in any way connected with my participation in this event, including travel to or from this event, and including injuries which may be suffered by me before, during or after the event. I understand that this waiver includes any claims based on negligence, action or inaction of any of the above parties.

Banfield signed and dated the entry form.

The trial court concluded that the parties formed a binding contract when Banfield mailed her entry and appellees accepted the entry; consequently, the waiver provision on the entry form effectively barred her negligence claims against the sponsors, organizers, and promoters. It also ruled that a disparity in bargaining positions was "not applicable to entry of athletic contests of this nature, where a party is not required to enter it and not entitled to participate unless they want to."

Accordingly, the trial court determined that no issue of fact remained to be submitted to a jury and entered final judgment in favor of Anheuser-Busch, Quaker Oats, the Hall of Fame, the Federation, Eaccarino, CAT, Mike's Cyclery, and the City of Fort Lauderdale. It reserved ruling on Bon's Barricades' motion for summary judgment until it could hear legal argument concerning whether Bon's Barricades was indeed an agent of the sponsors and thereby entitled to the benefit of the waiver agreement.

Several months later, the trial court entered final summary judgment in favor of Bon's, holding that Bon's was indeed an agent of the sponsors within the wording of the waiver; consequently, the waiver defense precluded Banfield's recovery against all of the defendants with the exception of Louis.

Banfield concedes that waiver or exculpatory clauses, although not looked upon with favor, are valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal. L. Luria & Son, Inc. v. Alarmtec Int'l Corp., 384 So.2d 947 (Fla. 4th DCA 1980); O'Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972). We hold the instant clause to be clear and unequivocal.

No Florida court has made a distinction between exculpatory clauses contained in commercial contracts and those relating to participation in recreational or sporting activities, and the Second District Court of Appeal recently upheld an exculpatory provision as enforced against a participant in a recreational sporting event. In Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2d DCA 1990), rev. denied, 581 So.2d 168 (Fla.1991), a contestant in a sprint car race held at the Florida State Fairgrounds Speedway, the "Dash for Cash," was killed when his car ran into another vehicle improperly on the track at the time of the race. The Theis court affirmed the trial court's entry of final summary judgment in favor of the promoter, the race track operator, and the driver of the other vehicle based upon a release and waiver of liability executed by the decedent because "the [release] clearly excused [the defendants] from liability for acts or omissions resulting from their own negligence." Id. at 94. See also Bruce v. Heiman, 392 So.2d 1026 (Fla. 5th DCA 1981) (racer/participant injured by "runaway" wheel at a speedway barred from recovery against speedway manager and owner's insurance carrier by virtue of a signed release of liability form).

Banfield asserts that the trial court erred in granting summary final judgment in favor of appellees because the determination of the relative bargaining positions of Banfield and appellees requires consideration of material issues of fact. We disagree. While in Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974), this court reversed a summary judgment and held that the determination of the parties' relative bargaining positions was a matter involving material issues of fact, the court noted that "a typical situation involving such inequality of bargaining strength is one where a public utility or a company serving some public function, as a precondition to doing business with them, requires their customer to sign a stipulation exempting the company from liability for negligence." Id. at 208-09, n. 4. In Ivey, the lessor of equipment, who sought the benefit of the exculpatory clause, allegedly maintained a monopoly over equipment essential to the processing and waxing of citrus fruit. Id.

The trial court here noted that Banfield was not required to enter the triathlon; she voluntarily chose to participate. Consequently, appellees maintain--and we agree--that the instant case is factually dissimilar to Ivey.

Other jurisdictions have rejected Banfield's argument. In Okura v. United States Cycling Federation, 186 Cal.App.3d 1462, 1468, 231 Cal.Rptr. 429, 432 (Cal.Ct.App.1986), the court specifically rejected the appellant/participant's assertion that the trial court erred in granting summary judgment in favor of the organizers of a bicycle race because the determination of the relative bargaining positions formed a material issue of fact. The Okura court found that the exculpatory provision contained within the entry form was valid and enforceable because the racer's participation was voluntary and the organization of the race was not a transaction "affecting the public interest." Id.

The service provided herein can hardly be termed essential. It is a leisure time activity put on for people who desire to enter such an event. People are not compelled to enter the event but are merely invited to take part. If they desire to take part, they are required to sign the entry and release form. The relative bargaining strengths of the...