O'Connell v. Walt Disney World Co., 81-118

• Decision Date: 05 May 1982
• Docket Number: No. 81-118,81-118
• Citation: 413 So.2d 444
• Parties: Frank O'CONNELL, Jr., a minor, Jo Ann O'Connell and Frank O'Connell, Appellants, v. WALT DISNEY WORLD COMPANY, etc., Appellee.
• Court: Florida District Court of Appeals

Page 444

413 So.2d 444

Frank O'CONNELL, Jr., a minor, Jo Ann O'Connell and Frank O'Connell, Appellants, v. WALT DISNEY WORLD COMPANY, etc., Appellee.

No. 81-118.

District Court of Appeal of Florida Fifth District.

May 5, 1982.

James H. Webb, Jr., of Maher, Overchuck, Langa & Cate, Orlando, for appellants.

John L. O'Donnell, Jr., and John H. Ward of DeWolf, Ward & Morris, P. A., Orlando, for appellee.

ORFINGER, Judge.

This appeal arises from a summary judgment entered below in favor of defendant. The minor appellant, Frank O'Connell, Jr., ¹ and his parents filed this action against defendant, alleging that the minor was injured during a stampede proximately caused by the negligent acts of appellee's employees in conducting a horseback ride. Appellants alleged that the negligence resulted from the failure to warn appellants of the dangerous nature of the ride, to instruct them about emergency procedures, to provide any safety device for children, and to appropriately train the horses to prevent stampedes. Because we find material issues of fact, we reverse for trial.

After paying the required admission fee, appellants went on a trail ride on horseback at Disney World. Mr. O'Connell signed a release form for Frank, Jr., for his younger daughter, for himself, and for his wife. ²

During the ride, the horses stampeded and Frank, Jr., was thrown from his horse, suffering severe injuries. His mother testified that prior to the stampede the horse of one of the cowboys conducting the ride was rearing and spinning and brushed against her horse five or six times. She believed that this was the cause of the stampede although she did not actually see or feel her horse brushed immediately before the incident. She testified that she was told by the cowboy that he was "rein-breaking" the horse; that no riding instructions were given before the ride began; and that her son was not provided with a set of short stirrups. She had been told that this was a walking ride and would not have taken the young children on the ride had she been told otherwise.

Mr. O'Connell, the minor's father, testified that there was a horse which kept rearing and spinning; that the cowboys never discussed with him the possible dangers involved in the ride; that the employee who sold him the tickets stated the ride would be at a walking pace; that he signed the "hold harmless" agreement; and that the family went on the ride solely for pleasure.

The employee who had conducted the trail ride denied that he was "rein breaking" a horse on the trail, and that he had ever told anyone he was doing so. He stated that he had never seen any other cowboy rein break a horse on this ride and that such a practice would not be permitted because it would upset the other horses. He testified that he did show the patrons basically how to handle the horses and that appellant did have special short stirrups. He further testified that there was no special training to prevent horses from being startled by animals ³ although he had trained them as thoroughly as possible not to be startled by things in general. However, there was no way to train a horse so that it would not be "spooked" by strange things. He also testified that he was riding in front of Mrs. O'Connell and that her horse ran into his, which caused his horse to jump and startle the horse in front of him; that he wasn't certain about the cause of the stampede and that an examination of the horses and equipment after the incident revealed nothing which would have caused it.

Appellee moved for summary judgment, alleging that based on the pleadings and record there was no genuine issue of material fact and that appellants contractually assumed the risk and agreed to hold appellee harmless and indemnify appellee for any damages. The motion was granted, and final judgment was entered for defendant.

Appellants raise these issues on appeal: (1) that the waiver and hold harmless agreement is not sufficient, as a matter of law, to bar a recovery; (2) even if otherwise sufficient, a waiver and hold harmless agreement signed by a parent on behalf of a minor child is not sufficient, as a matter of law, to bar a recovery by the child based on defendant's negligence; and (3) that there was no express assumption of risk by the minor in riding the horse such as would bar his recovery for defendant's negligence proximately causing the minor's injury.

Although there is a distinction in definition between an exculpatory clause and an indemnity clause in a contract, they both attempt to shift ultimate responsibility for negligent injury, and so are generally construed by the same principles of law. An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. An indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party (sometimes back to the injured party, thus producing the same result as an exculpatory provision).

While exculpatory clauses are enforceable, they are looked upon with disfavor; and any attempt to limit one's liability for his own negligent act will not be inferred from an agreement unless such intention is expressed in clear and unequivocal terms. Tout v. Hartford Accident and Indemnity Company, 390 So.2d 155 (Fla.3d DCA 1980); Ivey Plants, Inc. v. F.M.C. Corporation, 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974). Similarly, unless an indemnity agreement clearly and unequivocally provides for indemnification for the indemnitee's own negligence, that obligation will not be inferred. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979).

In the agreement here, there is a complete absence of any language indicating the intent to either release or indemnify the defendant for its own negligence, so we will not read that language into it. Thus, as to these issues, the agreement did not, as a matter of law, bar plaintiffs' recovery. Therefore, it is not necessary for us to decide whether the parent could waive the minor child's right to recovery, or agree on behalf of the minor, to the indemnification provision here.

We therefore address the issue of assumption of risk. Appellee characterizes the issue in the case as whether or not appellant assumed the risks of horseback riding either by express contract or by participation in a sport.

An express, contractual agreement to assume the risk of injury or loss is covered by the same principles which apply to any other type of exculpatory clause. Tout. In order to be enforceable, the agreement must unambiguously indicate which risks are assumed and will not be interpreted to include losses resulting from the defendant's negligence unless it is clear that the plaintiff so intended. Tout, citing Ivey Plants; Restatement of Torts, Second § 496B, comment d. ⁴ Assuming again the right of the parent to contractually assume the risk for the child, a point not decided here, the only risks referred to in the agreement here were those "inherent in horseback riding." Therefore, this provision would not bar recovery for injuries resulting from defendant's negligence because it is not so expressly stated. ⁵

Appellee argues that there is no negligence when an activity has been made as safe as possible. Appellee's employee testified that the only certain way to prevent a horse from being startled, would be to never have the ride at all. However, the conflicting evidence that no instructions were given to the riders, that the customary short stirrups were not used on the minor's horse, and that rein-breaking took place which could upset the horses, raises a factual question as to whether the ride was made as safe as possible.

Appellee also characterizes appellants' participation in the horseback ride as analogous to participation in a contact sport, relying on Strickland v. Roberts, 382 So.2d 1338 (Fla. 5th DCA 1980). In Strickland, the court upheld a summary judgment for defendant because plaintiff was engaging in an "aberrant" form of waterskiing, whereby he attempted to swing as close as possible to a dock and still miss it. A comparison of Strickland to the instant case appears to be inapposite, however, in that here there is no indication that appellant was intentionally engaging in an unusual or aberrant form of horseback riding. Also, the Strickland court actually held that the defendant's action was not the proximate cause of the plaintiff's injury.

We reiterate the principles of law applicable to summary judgment proceedings. A summary judgment should not be granted unless, construing all the evidence most favorably to the non-moving party, there is no issue of material fact and the movant is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The movant has the burden of conclusively proving that there is no triable issue of fact and the burden does not shift to the opposing party until the movant has met that burden.

If we view appellee's position to be that because there is an implied assumption of risk that horses will break and run when one engages in that activity and, therefore, appellants are barred from recovery even...