O'Connell v. Walt Disney World Co., No. 81-118

CourtCourt of Appeal of Florida (US)
Writing for the CourtORFINGER; DAUKSCH; FRANK D. UPCHURCH, Jr.; FRANK D. UPCHURCH, Jr.
PartiesFrank O'CONNELL, Jr., a minor, Jo Ann O'Connell and Frank O'Connell, Appellants, v. WALT DISNEY WORLD COMPANY, etc., Appellee.
Decision Date05 May 1982
Docket NumberNo. 81-118

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.

Page 445

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

Page 446

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

Page 447

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...

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56 practice notes
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...provision by shifting responsibility for the payment of damages back to the injured party, see O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. 5th DCA 1982), Florida courts recognize a distinction between exculpatory clauses and indemnity clauses.6 Acosta v. Rentals (N. Am.), I......
  • Scott By and Through Scott v. Pacific West Mountain Resort, No. 57944-0
    • United States
    • United States State Supreme Court of Washington
    • July 30, 1992
    ...an exculpatory clause. However, indemnity agreements are "closely akin" to releases. 10 The court in O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla.Dist.Ct.App.1982) explained that although there is a distinction in definition between exculpatory clauses and indemnity clauses, ......
  • Sweeney v. City of Bettendorf, No. 07-0127.
    • United States
    • United States State Supreme Court of Iowa
    • March 13, 2009
    ..."accidents" because the term is ambiguous and insufficient to release own negligent acts); see also O'Connell v. Walt Disney World Co., 413 So.2d 444, 446-47 (Fla.Dist.Ct.App.1982) (finding language stating company held harmless from liability and from risks inherent in riding activity not ......
  • Nazareth v. Herndon Ambulance Service, Inc., No. 83-1323
    • United States
    • Court of Appeal of Florida (US)
    • April 25, 1985
    ...discharging Herndon from the case. --------------- 1 Holl v. Talcott, 191 So.2d 40 (Fla.1966); O'Connell v. Walt Disney World Company, 413 So.2d 444 (Fla. 5th DCA 2 See Smith v. Reeder, 371 So.2d 718 (Fla. 3rd DCA 1979); Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3rd DC......
  • Request a trial to view additional results
56 cases
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...provision by shifting responsibility for the payment of damages back to the injured party, see O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. 5th DCA 1982), Florida courts recognize a distinction between exculpatory clauses and indemnity clauses.6 Acosta v. Rentals (N. Am.), I......
  • Scott By and Through Scott v. Pacific West Mountain Resort, No. 57944-0
    • United States
    • United States State Supreme Court of Washington
    • July 30, 1992
    ...an exculpatory clause. However, indemnity agreements are "closely akin" to releases. 10 The court in O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla.Dist.Ct.App.1982) explained that although there is a distinction in definition between exculpatory clauses and indemnity clauses, ......
  • Sweeney v. City of Bettendorf, No. 07-0127.
    • United States
    • United States State Supreme Court of Iowa
    • March 13, 2009
    ..."accidents" because the term is ambiguous and insufficient to release own negligent acts); see also O'Connell v. Walt Disney World Co., 413 So.2d 444, 446-47 (Fla.Dist.Ct.App.1982) (finding language stating company held harmless from liability and from risks inherent in riding activity not ......
  • Nazareth v. Herndon Ambulance Service, Inc., No. 83-1323
    • United States
    • Court of Appeal of Florida (US)
    • April 25, 1985
    ...discharging Herndon from the case. --------------- 1 Holl v. Talcott, 191 So.2d 40 (Fla.1966); O'Connell v. Walt Disney World Company, 413 So.2d 444 (Fla. 5th DCA 2 See Smith v. Reeder, 371 So.2d 718 (Fla. 3rd DCA 1979); Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3rd DC......
  • Request a trial to view additional results

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