Brooks v. Paul

• Citation: 219 So.3d 886
• Decision Date: 07 June 2017
• Docket Number: No. 4D16–2538,4D16–2538
• Parties: Myra L. BROOKS and Ronald R. Brooks, Appellants, v. Michael D. PAUL, M.D.; MacMillan, Paul and Burkarth, P.A., d/b/a Treasure Coast Neurosurgery ; and Rene M. Loyola, M.D., Appellees.
• Court: Court of Appeal of Florida (US)

219 So.3d 886

Myra L. BROOKS and Ronald R. Brooks, Appellants,

v.Michael D. PAUL, M.D.; MacMillan, Paul and Burkarth, P.A., d/b/a Treasure Coast Neurosurgery ; and Rene M. Loyola, M.D., Appellees.

No. 4D16–2538

District Court of Appeal of Florida, Fourth District.

[June 7, 2017]

Jeffrey C. Fulford of Jeffrey C. Fulford, P.A., Stuart, for appellants.

William T. Viergever of Sonneborn Rutter Cooney Viergever Burt & Lury, P.A., West Palm Beach, for appellees.

Ciklin, C.J.

Myra L. Brooks and Ronald R. Brooks, the plaintiffs below, appeal the final summary judgment entered in this medical malpractice case in favor of the defendants below, Michael D. Paul, M.D., and MacMillan, Paul and Burkarth P.A., d/b/a Treasure Coast Neurosurgery

. The plaintiffs argue that the trial court erred in finding that a release executed by the patient, Myra L. Brooks ("Myra"), unambiguously waived negligence claims. We agree that the release, read in its entirety, was unclear and ambiguous as to negligence claims. Accordingly, we reverse and remand for further proceedings.

In 2013, the plaintiffs brought suit against the defendants, and others not relevant to this appeal, alleging negligence. Specifically, Myra alleged that during a spinal fusion

surgery, her ureter was cut, resulting in significant injuries. The defendants moved for summary judgment based on a purported exculpatory release executed by Myra before the surgery. The release contains the following language:

As of January 1, 2003, Dr. Michael D. Paul, and the professional corporation of MacMillan, Paul and Burkarth, P.A., also known as Treasure Coast Neurosurgery

, will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue Dr. Michael D. Paul, or the professional corporation of MacMillan Paul and Burkarth, P.A. for any reason. My reason for doing this is that 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.

The trial court entered summary judgment in favor of the defendants, finding the release to be "completely unambiguous" in releasing claims of negligence.

"The standard of review of an order granting summary judgment is de novo." Fini v. Glascoe , 936 So.2d 52, 54 (Fla. 4th DCA 2006). When "the enforceability of [a] pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo." Kirton v. Fields , 997 So.2d 349, 352 (Fla. 2008).

"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) ).

In their motion for summary judgment, the defendants relied on Sanislo v. Give Kids the World, Inc. , 157 So.3d 256 (Fla. 2015). In that case, the parents of a seriously ill child sued a non-profit organization that provided free vacations to such children and their families at its resort village, alleging that the organization's negligence resulted in a wheelchair lift collapsing and injuring one of the parents. Id. at 258–59. In connection with the free vacation, the parents signed a liability release form, which provided as follows:

I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants, and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind....

I/we further agree to hold harmless and to release Give Kids the World, Inc. from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us....

Id. at 258–59.

The charitable organization moved for summary judgment based on the release. Id. at 259. After the trial court denied the organization's motion and the jury found in favor of the appellants, the Fifth District reversed, finding that the release encompassed negligence claims even though it did not expressly reference negligence actions. Id. (citing Give Kids the World, Inc. v. Sanislo , 98 So.3d 759, 761–62 (Fla. 5th DCA 2012) ). On appeal, the Florida Supreme Court held that a negligence claim may be barred by a release even if the release does not explicitly reference negligence actions. Id. at 270. The Court explained that the test is whether the language of the exculpatory clause "unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away." Id. at 271. The Court found that the language of the release "clearly conveys that Give Kids the World would be released from any liability, including negligence, for damages, losses, or injuries due to transportation, food, lodging, entertainment, and photographs." Id. at 270. The Court further reasoned as follows:

[T]his agreement specifically operates to release Give Kids the World in connection with circumstances that are not inherently dangerous. Thus, this is not a situation where a person of ordinary intelligence would believe that the release "could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant." Accordingly, this agreement would be rendered meaningless if it is deemed ineffective to bar a negligence action solely on the basis of the absence of the legal terms of art "negligence" or "negligent acts" from the otherwise clear and unequivocal language in the agreement.

Id. at 271 (citation omitted).

The instant case is more akin to the exculpatory provisions that were found ambiguous in Goyings v. Jack and Ruth Eckerd Foundation , 403 So.2d 1144 (Fla. 2d DCA 1981) ; Murphy, 974 So.2d 565 ; and UCF Athletics Ass'n v. Plancher , 121 So.3d 1097 (Fla. 5th DCA 2013). In Goyings , the exculpatory clause was contained in a contract between a children's camp and the mother of a child. It provided the following:

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. On appeal from a summary judgment in the camp's favor, the Second District reversed, finding the language was ineffective where there was no reference to negligence. Id. at 1146. Although this reasoning was subsequently found to be erroneous in Sanislo , the Second District also reasoned as follows:

By their own choice of language, appellees agreed to take reasonable precautions to assure [the child'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. Construing the exculpatory clause as a whole, appellees' release from liability rests on their exercise of reasonable care to ensure [the child's] safety and good health.

Id. at 1146–47 (citations omitted). This portion of Goyings was not expressly disapproved of by the Court in Sanislo.

In Murphy , 974 So.2d at 566–67, after a woman was injured while using exercise equipment at the YMCA's gym, she sued the YMCA for negligence in failing to maintain, inspect, and repair its exercise equipment. With reservations, the trial court granted the YMCA's summary judgment motion, which was based on an exculpatory provision in the membership application. Id. at 567. The waiver "specifically state[s] that the YMCA is not liable for ‘any claims based on negligence,’ " and also states, "I understand that even when every reasonable precaution is taken, accidents can sometimes still happen." Id. at 566–68. The court reasoned that "the juxtaposition of the ‘every reasonable precaution’ provision with the provision for the release of ‘any claims based on negligence’ " resulted in confusion. Id. at 568. The court further reasoned as follows:

A reasonable reader might be led to believe that the waiver of liability extends only to claims for injuries that were unavoidable "even when every reasonable precaution" had been taken by the YMCA. In light of the "every reasonable precaution" language, the waiver does not clearly and unequivocally

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