Cain v. Banka, No. 5D05-3986.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPleus
Citation932 So.2d 575
PartiesRichard T. CAIN, Appellant, v. Louis L. BANKA, II, etc., et al., Appellees.
Docket NumberNo. 5D05-3986.
Decision Date30 June 2006
932 So.2d 575
Richard T. CAIN, Appellant,
v.
Louis L. BANKA, II, etc., et al., Appellees.
No. 5D05-3986.
District Court of Appeal of Florida, Fifth District.
June 30, 2006.

Page 576

Arthur J. Ranson, III, and C. Ryan Morgan, of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellant.

Laurie D. Beechner, of Marshall, Dennehey, Warner, Coleman & Goggin, A Professional Association, Orlando, for Appellees.

PLEUS, C.J.


The issue on this appeal concerns whether an exculpatory clause contained in

Page 577

a master release, signed by the plaintiff in 1999 when he began riding at a motocross track, barred him from recovering for personal injuries he sustained in 2002 while riding his motocross bike at the track. The trial court found the release to be clear and unambiguous and granted summary judgment, ruling the plaintiff's claim was barred. The plaintiff maintains the release is unenforceable and urges reversal of the summary final judgment.

The action stems from an accident that occurred on May 15, 2002, at a track operated under the fictitious name Motocross World of Central Florida. The plaintiff alleges he was participating in a practice on the night in question and was attempting to maneuver a "single to table" jump when his motocross bike collided with the table portion of the jump. He sued, claiming the track and table surface were negligently designed and maintained. He commenced a lawsuit against Louis L. Banka, II, (Banka) who was, among other things, an employee of the owner of the track, DGB Racing, Inc.

According to Banka, in 1999, the track required all individuals desirous of participating in races and practices to become a member and to sign a master release. In turn, members received a membership card which had an expiration date on it and which further stated the member had a release on file.

Banka testified by way of deposition that the plaintiff became a member at the track in 1999 and was issued a membership card certifying he had executed a release that was on file. The plaintiff did not deny this though neither the actual membership card nor a copy were introduced below.

The release, which the plaintiff concedes he signed in 1999, does not mention any membership and provides as follows:

In consideration of receiving permission from DGB RACING, INCORPORATED, to enter upon the premises of this raceway, located in Orlando, Orange County, Florida, the receipt of such permission being hereby acknowledged, and in further consideration of receiving permission to participate, when qualified, either as a rider, mechanic, owner, attendant, or in any other capacity, in any race or practice held at the above location, the receipt of such permission being also hereby acknowledged, each of the undersigned hereby release DGB RACING, INCORPORATED, the promoter, and its agents, officers, servants, and employees, of and from any and all liability, claims, demands, actions, and causes of action whatsoever, arising out of or related to any loss, damage or injury, including death, that may be sustained by the undersigned, or any property of the undersigned, while in, on, or upon the above mentioned premises, or any premises leased to, owned by, sanctioned by or under the control or supervision of DGB RACING, INCORPORATED, or in route to or from the above mentioned premises, or any other premises leased to or under the control or supervision [sic] DGB RACING, INCORPORATED.

The undersigned being duly aware of the risks and hazards inherent upon entering upon said above mentioned premises and/or in participating in any races or practices held at the above mentioned premises, hereby elects voluntarily to enter upon said premises, knowing their present condition and knowing that said conditions may become more hazardous and dangerous during the time that the undersigned is upon the above mentioned premises. The undersigned hereby voluntarily assumes all risks of loss, damage, injury, including death, that may be sustained by the undersigned

Page 578

while in, on or upon the above mentioned premises.

The parties agree that on May 15, 2002, the plaintiff did not sign a check-in sheet or a release when he entered the track with his motorbike. Banka confirmed that sometime prior to the accident, the track began utilizing another release at the request of its insurance carrier. According to Banka, this new release was not meant to void or nullify the master release and was merely part of a sign-in process at the gate that included on it exculpatory language, for every race and practice. Banka explained the track still required the execution of the master release as part of the membership process since it had discovered some individuals attempting to bypass the sign-in area.

The trial court's legal determination, that the 1999 release was effective to bar the plaintiff's negligence claim against Banka, as an employee of DGB Racing, Inc., is reviewed de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Because we conclude that the court's determination fails to comport with Florida law governing enforceability of exculpatory clauses, we reverse.

The plaintiff concedes that as a general proposition, exculpatory clauses may extinguish liability for claims against premise owner/operators for injuries caused by the negligence of the owner/operator but claims the 1999 release which he signed does not satisfy Florida law. He argues that the release is not clear and unequivocal as required by Florida law, and that further failure to sign it contemporaneously with the event being released is fatal to its enforceability.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 832 So.2d 270 (Fla. 4th DCA 2002). Exculpatory clauses are disfavored and are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away. Gayon v. Bally's Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001).

This district has rejected the need for express language referring to release of the defendant for "negligence" or "negligent acts" in order to render a release effective to bar a negligence action. See Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998)....

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24 practice notes
  • Bank of Am., N. A. v. Fed. Deposit Ins. Corp., Civil Action No. 10–CV–1681 (BJR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...is “so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” Cain v. Banka, 932 So.2d 575, 578 (Fla.Dist.Ct.App.2006). That is not the case here. Accordingly, the Court determines that the exculpatory language in paragraphs 10A and 11 is ......
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...“negligence” or “negligent acts” in order to render a release effective to bar a negligence action.’ ” Id. at 761 (quoting Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006) ). The Fifth District also held that the bargaining power of the parties should not be considered because it was o......
  • Bank of Am., N.A. v. Fed. Deposit Ins. Corp., Civil Action No. 10-CV-1681 (BJR)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...is "so clear and understandable that an ordinary and knowledgeable person will know what he isPage 49contracting away." Cain v. Banka, 932 So. 2d 575, 578 (Fla. Dist. Ct. App. 2006). That is not the case here. Accordingly, the Court determines that the exculpatory language in paragraphs 10A......
  • Kirton v. Fields, No. SC07-1739.
    • United States
    • United States State Supreme Court of Florida
    • December 11, 2008
    ...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 countervailing policy that favors the enforcement of contracts, as a general proposition......
  • Request a trial to view additional results
24 cases
  • Bank of Am., N. A. v. Fed. Deposit Ins. Corp., Civil Action No. 10–CV–1681 (BJR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...is “so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” Cain v. Banka, 932 So.2d 575, 578 (Fla.Dist.Ct.App.2006). That is not the case here. Accordingly, the Court determines that the exculpatory language in paragraphs 10A and 11 is ......
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...“negligence” or “negligent acts” in order to render a release effective to bar a negligence action.’ ” Id. at 761 (quoting Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006) ). The Fifth District also held that the bargaining power of the parties should not be considered because it was o......
  • Bank of Am., N.A. v. Fed. Deposit Ins. Corp., Civil Action No. 10-CV-1681 (BJR)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...clear and understandable that an ordinary and knowledgeable person will know what he isPage 49contracting away." Cain v. Banka, 932 So. 2d 575, 578 (Fla. Dist. Ct. App. 2006). That is not the case here. Accordingly, the Court determines that the exculpatory language in paragraphs 10A a......
  • Kirton v. Fields, No. SC07-1739.
    • United States
    • United States State Supreme Court of Florida
    • December 11, 2008
    ...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 countervailing policy that favors the enforcement of contracts, as a general proposition......
  • Request a trial to view additional results

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