Goyings v. Jack and Ruth Eckerd Foundation

• Citation: 403 So.2d 1144
• Decision Date: 23 September 1981
• Docket Number: No. 80-2304,E-N,80-2304
• Parties: Leigh Anne GOYINGS, a minor, by and through Betty Goyings, as next friend and natural mother, and Betty Goyings, individually, Appellant, v. The JACK AND RUTH ECKERD FOUNDATION; Eckerd Wilderness Educational System;ini-Hassee Girls Camp; The Trustees of the Jack and Ruth Eckerd Foundation,to-wit: Gerald S. Rehm, Executive Director, Jack Eckerd, Ruth Eckerd, J. FloydGlisson,James Swann, and Robert Coleman; Joe Callan, Director of ini-Hassee GirlsCamp; Pauline Murphy; Judy Bell; Kathy "Doe"; Carol "Doe"; and TheTravelers Insurance Company, a Connecticut Corporation, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1144

403 So.2d 1144

Leigh Anne GOYINGS, a minor, by and through Betty Goyings, as next friend and natural mother, and Betty Goyings, individually, Appellant, v. The JACK AND RUTH ECKERD FOUNDATION; Eckerd Wilderness Educational System;E-Nini-Hassee Girls Camp; The Trustees of the Jack and Ruth Eckerd Foundation,to-wit: Gerald S. Rehm, Executive Director, Jack Eckerd, Ruth Eckerd, J. FloydGlisson,James Swann, and Robert Coleman; Joe Callan, Director of E-Nini-Hassee GirlsCamp; Pauline Murphy; Judy Bell; Kathy "Doe"; Carol "Doe"; and TheTravelers Insurance Company, a Connecticut Corporation, Appellees.

No. 80-2304.

District Court of Appeal of Florida, Second District.

Sept. 23, 1981.

R. Michael Underwood and Kenneth D. Morse of Matthias & Matthias, Orlando, for appellant.

Rick A. Mattson of Mattson & McGrady, St. Petersburg, for appellees.

SCHEB, Chief Judge.

In this appeal we must determine the validity of an exculpatory clause and its effect on the appellant's suit to recover damages for injuries sustained by her minor child.

Appellant, Betty Goyings, enrolled her minor daughter, Leigh Anne, in E-Nini-Hassee Girls Camp, a camp for children with emotional problems operated by the Eckerd Foundation and the Eckerd Wilderness Educational System. She signed a contract submitted by the camp agreeing to pay $750 a month for the full care and support of her minor daughter. The fee included payment for Leigh Anne's participation in a therapeutic program. While on a two-week canoe trip supervised by the camp, Leigh Anne suffered mental and physical injuries requiring her to be hospitalized.

Appellant, individually and as mother and next friend of Leigh Anne, filed a suit naming appellees as defendants and seeking damages for her daughter's injuries. She alleged that Leigh Anne had been under continuing psychiatric care prior to entering camp and was required to take prescribed medicine to keep her mentally stable. She further alleged that she relied upon the camp's verbal agreement to administer the medicine. She complained that the camp's failure to do so on the canoe trip caused Leigh Anne's injuries. Appellant pled in the alternative that the camp's failure to administer the medication was either negligent, intentional, or with a reckless disregard of the consequences.

Appellees filed their answer and then moved for summary judgment relying on an exculpatory clause in the contract appellant signed. The clause stated:

It is further agreed that reasonable precautions will be taken by Camp to assure the safety and good health of said boy/girl but that Camp is not to be held liable in the event of injury, illness or death of said boy/girl, and the undersigned, does fully release Camp, and all persons concerned therewith, for any such liability.

The trial court held that the quoted clause released appellees from any liability and awarded them a summary final judgment. We disagree with the court's interpretation of the exculpatory clause, and find that there were genuine issues of material fact. Accordingly, we reverse.

At the outset we observe that an attempt by a defendant to exonerate himself from liability for an intentional tort is against public policy. Zuckerman-Vernor Corp. v. Rosen, 361 So.2d 804 (Fla. 4th DCA 1978); Fuentes v. Owen, 310 So.2d 458 (Fla. 3d DCA 1975). Nevertheless, an exculpatory clause, while not favored, may operate to absolve a defendant from liability arising out of his own negligent acts. For such a clause to be effective, however it must clearly state that it releases the party from liability for his own negligence. L. Luria & Son, Inc. v. Alarmtec International Corp., 384 So.2d 947 (Fla. 4th DCA 1980); Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972). In Middleton, the plaintiff appealed from a summary final judgment entered against him in an action for personal injuries which he sustained in a fall on the leased premises. His lease provided that the landlord shall not be liable for "any and all claims for loss, damage or injury of any nature whatsoever to person or property ... whether caused by negligent acts of the LANDLORD, its agents or servants or otherwise." 266 So.2d at 679. The court recognized that exculpatory clauses which attempt to relieve a party of his own negligence are not favored. Nonetheless, it upheld that particular provision because it clearly stated that the landlord would not be liable for his own negligence. Accord, Sniffen v. Century National Bank, 375 So.2d 892 (Fla. 4th DCA 1979); Orkin Exterminating Co. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978); Gulf Oil Corp. v. Atlantic Coast Line Railroad, 196 So.2d 456 (Fla. 2d DCA 1967); Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964).

Although all Florida courts have generally agreed that to absolve an indemnitee from liability for his own negligence,...