Gillette v. All Pro Sports, LLC.

• Decision Date: 24 January 2014
• Docket Number: No. 5D12–1527.,5D12–1527.
• Citation: 135 So.3d 369
• Parties: Carol Ann GILLETTE, Appellant, v. ALL PRO SPORTS, LLC., d/b/a Family Fun Town, Appellee.
• Court: Florida District Court of Appeals

135 So.3d 369

Carol Ann GILLETTE, Appellant,
v.
ALL PRO SPORTS, LLC., d/b/a Family Fun Town, Appellee.

No. 5D12–1527.

District Court of Appeal of Florida,
Fifth District.

Jan. 24, 2014.
Rehearing Denied Jan. 24, 2014.

[135 So.3d 370]

D. Paul McCaskill of David & Philpot, P.A., and J. Michael Matthews of J. Michael Matthews, P.A. Maitland, for Appellant.

Bruce R. Bogan of Hilyard, Bogan & Palmer, PA, Orlando, for Appellee.

ON MOTION FOR REHEARING
PER CURIAM.

We deny Appellee's motions for rehearing and rehearing en banc. For purposes of clarification, we withdraw our prior opinion and substitute this opinion in its place.

Appellant challenges a summary final judgment in favor of Appellee on her complaint for injuries she received in a Go–Kart accident at a facility operated by Appellee. Appellant contends that Appellee's employee negligently increased the Go–Kart speed during a race, causing her to lose control of the Go–Kart and crash into the railing. The lower court held that a waiver and release form signed by Appellant precluded her negligence action. We reverse.

The sole issue on appeal is whether the waiver and release signed by Appellant effectively precludes an action based on Appellee's purported negligence. The document provides in material part as follows:

WAIVER AND RELEASE FROM LIABILITY FOR GO CARTS AND TRACK

In consideration for being permitted to drive Go Karts at Family Fun Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as follows:

1. I HAVE READ THE RULES FOR OPERATING THE Go Karts, and accept full responsibility for obeying

[135 So.3d 371]

the rules and all other posted rules and warning signs;

2. I understand that the course of [sic] which the Go Karts operate has curves, which require a degree of skill and responsibility to navigate safely. I have the necessary skill and will exercise the responsibility necessary to operate the Go Karts and navigate the course safely;

3. The Go Karts are controlled by individual drivers, who are capable of making mistakes and intentionally causing harm to others. I could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inactions of another driver. I freely and knowingly assume this risk. I take full responsibility for any claims or personal injury, death, or damage to personal property arising out of my use of the G[sic] Karts and/or the Go Kart track, whether to me or to other people. On behalf of myself, my heirs,...