DeBoer v. Florida Offroaders Driver's Ass'n, Inc.

• Decision Date: 13 August 1993
• Docket Number: No. 92-2338,92-2338
• Court: Florida District Court of Appeals
• Parties: 18 Fla. L. Weekly D1805 John DEBOER, as personal representative of the Estate of Bonnie Lynn Drumheller, Deceased, Appellant, v. FLORIDA OFFROADERS DRIVER'S ASSOCIATION, INC., etc., Appellee.

Page 1134

622 So.2d 1134

18 Fla. L. Weekly D1805

John DEBOER, as personal representative of the Estate of Bonnie Lynn Drumheller, Deceased, Appellant, v. FLORIDA OFFROADERS DRIVER'S ASSOCIATION, INC., etc., Appellee.

No. 92-2338.

District Court of Appeal of Florida,

Fifth District.

Aug. 13, 1993.

Roy B. Dalton, Jr., of Martinez & Dalton, P.A., and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Orlando, for appellant.

R. Barry Morgan of Lawrence, Landis & Morgan, P.A., Orlando, for appellee.

PETERSON, Judge.

Appellant is personal representative of the estate of Bonnie Lynn Drumheller, a spectator at a racing event conducted by appellee, Florida Offroaders Driver's Association, Inc. (FORDA). While Drumheller was attempting to walk across the racetrack she was hit by a racing car and died from the resulting injuries. FORDA successfully moved for summary judgment on the ground that Drumheller signed a release when she entered the racetrack facility.

On April 24, 1990, FORDA conducted a race for offroad vehicles at Crowder's Pits near Tallahassee. The event was open to the general public provided that each admittee paid an admission fee of $10.00 and signed the release and waiver appended to this opinion. Drumheller attended the race A sketch of Crowder's Pits designates a spectator area on one side of the track. Portable toilets are located in the pit area across the track and one must cross the racetrack in order to visit the pit area. Once the race starts, the entrance gate is locked to prevent vehicles from leaving the racing grounds because in order to exit, vehicles would have to cross the racetrack. The record does not indicate that any barriers separate the spectators from the track or that officials guard the track to prevent access to an active racetrack. The record does not reflect the reason why Drumheller attempted to cross the track or why she failed to see and avoid the vehicle that struck her.

in the company of two companions and gained entrance after paying the admission fee and signing the release. According to a representative of FORDA, there is one entrance to the event and, when the patrons arrive at the gate in their vehicles, the ticket seller hands them a clipboard to which the release is attached. Everyone in the vehicle then signs the release and returns the clipboard and release to the ticket seller along with the money. It usually takes only a few minutes to accomplish this transaction and the rules of FORDA prevent admission in the absence of a signed waiver.

Appellant contends that the trial court erred in entering summary judgment because material issues of fact existed as to:

(1) The scope of the release.

(2) The relationship of the parties.

(3) Whether the release is unconscionable and therefore unenforceable.

SCOPE OF RELEASE

Appellant concedes that it is the law of Florida that although exculpatory clauses are disfavored, they are enforceable. Agreements which purport to limit, in advance, one's liability for negligence will not be enforced unless the intention to limit is clearly and unequivocally expressed. O'Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982); Theis v. J & J Racing Promotions, 571 So.2d 92 (Fla. 2d DCA 1990), rev. denied, 581 So.2d 168 (Fla.1991); Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979); University Plaza Shopping Center v. Stewart, 272 So.2d 507 (Fla.1973); L. Luria & Son, Inc. v. Alarmtec Intern. Corp., 384 So.2d 947 (Fla. 4th DCA 1980); Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972).

A release and waiver quite similar to that signed by Drumheller has been used in at least one prior case. In Theis, a race car driver was killed when, during a race, his car overtook and ran into another car which was running unauthorized test laps on the track. The issue in Theis was "whether the release and waiver signed by the driver, Theis, was clear, unambiguous, unequivocal, broad enough and specific enough to absolve appellees for liability for their own negligence, even if their actions constituted gross negligence." Id. at 93. The court held that the release and waiver met all those requirements and construed it to encompass all forms of negligence, simple or gross.

Appellant points out that, in Theis, the releasor was a participant in the race. He argues that while a participant in a race, such as the race driver in Theis, may effectively release a racing sponsor with this particular form, it does not follow that the same form or a similar form is so clear, specific and unambiguous as to allow a spectator to effectively release FORDA. However, Theis, did not turn on the status of the driver; it turned on whether the form was broad enough to release the sponsor of negligence, ordinary or gross, during the racing event.

Appellant states in his brief:

A first-timer could easily have interpreted the document she signed as a warning to stay out of restricted areas and as a limitation of liability for the Defendant should she choose to ignore that warning. However, it is unlikely that the first-timer would understand that she would be a prisoner once she entered the gates and the race started, that to take care of her restroom needs that she We agree with the first sentence of the statement, and it is undisputed that the track in the instant case was a restricted area to which the release applied. The facts stated in the second sentence are not at all supported by the evidence, nor is there any assertion that they could be proved if an opportunity were presented. The assertion that Drumheller was traversing the racetrack to take care of rest room needs is pure speculation unsupported by the evidence. Further, for a release to be effective, it is not necessary to list each possible class of releasor or each possible manner in which a releasor could be injured during an inherently dangerous event. The possibilities are endless. The instant release is very similar to the release in Theis, and, if the public policy of this state is to allow limitation of liability for negligence in advance, we agree with the Second District Court that the language of the release was sufficient to accomplish the limitation.

would be forced to enter a restricted area and risk her life, and that the document she signed was intended to absolve the Defendant of all liability for her death.

In the instant case, a reasonable person would have heeded the warning in the release to stay out of the restricted area or risk injury without liability on the part of the promoter. The warning here rings louder than in Theis. The driver in Theis could not reasonably anticipate that, while participating in an authorized race, he would encounter another vehicle on the race track conducting unauthorized test laps. Here, Drumheller walked across the racing surface...