Elalouf v. Sch. Bd. of Broward Cnty.

• Decision Date: 06 January 2021
• Docket Number: No. 4D19-3272,4D19-3272
• Citation: 311 So.3d 863
• Parties: Ethan ELALOUF, Appellant, v. SCHOOL BOARD OF BROWARD COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

311 So.3d 863

Ethan ELALOUF, Appellant,

v.SCHOOL BOARD OF BROWARD COUNTY, a political subdivision of the State of Florida, Appellee.

No. 4D19-3272

District Court of Appeal of Florida, Fourth District.

[January 6, 2021]

Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale, for appellant.

Michael T. Burke of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee.

Leonard E. Ireland Jr. of Clayton-Johnston, P.A., Gainesville, for Amicus Curiae FHSAA.

Levine, C.J.

Appellant, a high school athlete, appeals a final judgment in favor of the School Board of Broward County ("school board") finding that an executed pre-game release barred his claim of negligence against the school board. Appellant now contends that the release is ambiguous and unenforceable and that, for public policy reasons, it should be treated no differently than a pre-injury release for commercial establishments. We affirm and find that appellant did not preserve below the claims he now argues. Further, even if appellant had preserved his claims, his arguments are without merit.

Appellant played on his high school varsity soccer team. During a varsity soccer game, another player hit appellant while he attempted a shot on goal. The force of the hit threw appellant into an unpadded cement barrier near the soccer field.

Prior to playing in the varsity soccer game, appellant and his father voluntarily signed a "Consent and Release from Liability Certificate" allowing appellant to play soccer for his high school. In the student acknowledgment section of the release, appellant agreed to "release and hold harmless [the school board] of any and all responsibility and liability for any injury or claim resulting from such athletic participation. ..." The parental consent section of the release contained the same language. The release also included a section in large bold font stating the following:

EVEN IF ... THE SCHOOL DISTRICT ... USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED ... BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD'S RIGHT AND YOUR RIGHT TO RECOVER FROM ... THE SCHOOL DISTRICT ... IN A LAWSUIT FOR ANY PERSONAL INJURY ... THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY....

Appellant sued for negligence, claiming the school board should have covered the cement barrier and not had the barrier close to the field. The school board moved for summary judgment, arguing the release barred appellant's action under Krathen v. School Board of Monroe County , 972 So. 2d 887 (Fla. 3d DCA 2007). In his response to the school board's motion for summary judgment, appellant argued only that the release neither mentioned the word "negligence" nor released the school board from its own negligence. Appellant elaborated that leaving a cement barrier uncovered near the soccer field was a risk that could not be considered a natural part of the activity. The trial court granted summary judgment relying on Krathen and entered final judgment for the school board. This appeal follows.

Orders entering summary judgment are reviewed de novo. Kokhan v. Auto Club Ins. Co. of Fla. , 297 So. 3d 570, 575 (Fla. 4th DCA 2020). The enforceability of a pre-injury release arising from undisputed facts is reviewed de novo. Brooks v. Paul , 219 So. 3d 886, 887 (Fla. 4th DCA 2017).

"An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury." Id. (citation omitted). "Such provisions are deemed to be unambiguous and enforceable when the language unequivocally demonstrates a clear and understandable intention for the defendant to be relieved from liability such that an ordinary and knowledgeable person will know what he or she is contracting away." Pillay v. Pub. Storage, Inc. , 284 So. 3d 566, 569 (Fla. 4th DCA 2019).

Initially, the school board argues appellant did not preserve his claims for appeal. "A litigant seeking to overturn a lower court's judgment may not rely on one line of argument in the trial court and then pursue a different line of argument in the appellate courts." Sanchez v. Miami-Dade Cty. , 286 So. 3d 191, 195 (Fla. 2019). Absent fundamental error, arguments must be preserved. Id.

Here, appellant did not preserve his claims for appeal. First, appellant did not argue below any public policy reasons for not treating the release differently than a pre-injury release for a commercial business. Second, and more importantly, appellant did not argue below that the language in the release was ambiguous or caused him confusion. Rather, appellant merely argued that the release did not include the word "negligence" and thus nothing in the release operated to excuse the school board's own negligence. The entire tenor of appellant's response in opposition to the school board's motion for summary judgment centered on the absence of the word "negligence."¹

We find no fundamental error because the trial court did not commit error that went to the heart of the judicial process. See Fleischer v. Fleischer , 586 So. 2d 1253, 1254 (Fla. 4th DCA 1991). In this case, appellant pursued one line of argument below, and then pursued a different line of argument on appeal. Sanchez , 286 So. 3d at 195.

Further, even if appellant had preserved his claims for appeal, the release is unambiguous and enforceable. On this point, Krathen is instructive. In Krathen , a high school cheerleader sustained injuries during a practice at her school's gymnasium. 972 So. 2d at 888. The cheerleader alleged the school board was negligent in failing to place protective mats on the floor during practice. Id. Prior to the incident, the cheerleader signed a "Consent and Release from Liability Certificate," releasing the school board from liability for "any injury or claim resulting from ... athletic participation." Id. The Third District determined the language in the release "clearly and unambiguously" released the school board from liability for negligence claims. Id.

In this case, the release signed by appellant was a "Consent and Release from Liability Certificate" that released the school board from liability for "any injury or claim resulting from ... athletic participation." Like in Krathen , this language "clearly and unambiguously" released the school board from liability for negligence claims. Because appellant suffered injuries resulting from athletic participation, the school board would be held harmless from liability. Accordingly, the trial court did not err in granting summary judgment in favor of the school board.²

Appellant cites to cases finding an exculpatory clause ambiguous when qualifying provisions in the release created confusion as to what claims were being released. Brooks , 219 So. 3d at 887 (invalidating an exculpatory clause when disclaimer was qualified by a statement that the surgeon would "do the very best to take care of [the patient] according to community medical standards"); Murphy v. Young Men's Christian Ass'n of Lake Wales, Inc. , 974 So. 2d 565, 566-68 (Fla. 2d DCA 2008) (finding ambiguity when the exculpatory clause excluded "any claims based on negligence" but also provided that YMCA would take "every reasonable precaution" and concluding that a reasonable reader might be led to believe that the waiver of liability extended only to claims for injuries that were unavoidable).

Brooks and Murphy determined the qualifying language created confusion because the entity seeking to be released from liability agreed to exercise reasonable care in providing the activity despite the release's broad disclaimer of liability. Unlike Brooks and Murphy , the qualifying statements here clearly warn that serious injuries can occur even if reasonable precautions are taken.

In Merlien v. JM Family Enterprises, Inc. , 301 So. 3d 1 (Fla. 4th DCA 2020), this court found clear and unambiguous a disclaimer that specifically released all rights to make a claim and that did not suggest the company would take responsibility for the releasor's safety. Like the release in Merlien , the disclaimer here releases the school board from liability for all claims arising from athletic participation. The wording of the release unequivocally demonstrates a clear and understandable intention for the school board to be relieved from liability.

The fact that the language releasing the school board from "any injury or claim resulting from ... athletic participation" was a smaller font size than the portion of the release addressing inherent dangers does not somehow change its meaning or render the release unclear or ambiguous. "[O]ne who signs a contract is presumed to know its contents ...." All Fla. Sur. Co. v. Coker , 88 So. 2d 508, 511 (Fla. 1956). In interpreting a contract, a court must give effect to all its terms. Belen Sch., Inc. v. Higgins , 462 So. 2d 1151, 1153 (Fla. 4th DCA 1984). This is not a case where terms were "hidden in a maze of fine print." Bellsouth Mobility LLC v. Christopher , 819 So. 2d 171, 173 (Fla. 4th DCA 2002). The entire release encompassed less than a single page.

Appellant lastly now argues on appeal that the trial court erred in entering summary judgment when no policy reason was shown to treat the release any differently from a commercial pre-injury release, which is unenforceable when executed by a parent on behalf of a minor. In support, appellant relies on Kirton v. Fields , 997 So. 2d 349 (Fla. 2008). Even if this issue was preserved, Kirton is inapposite.

In Kirton , the court held that a "pre-injury release executed by a parent on behalf of a minor child is unenforceable ... in a tort action arising from injuries resulting from participation in a commercial activity." Id. at 358. The court specifically did not extend this holding to a...