Harrell v. BMS Partners, LLC

• Decision Date: 02 November 2022
• Docket Number: 4D22-121
• Parties: CHARLES RANDOLPH HARRELL, Appellant, v. BMS PARTNERS, LLC, d/b/a BROWARD MOTORSPORTS, Appellee.
• Court: Court of Appeal of Florida (US)

CHARLES RANDOLPH HARRELL, Appellant, v. BMS PARTNERS, LLC, d/b/a BROWARD MOTORSPORTS, Appellee.

No. 4D22-121

Florida Court of Appeals, Fourth District

November 2, 2022

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit Broward County; Carol Lisa Phillips, Judge; L.T. Case No CACE 20-013803 (25).

Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather &amp Littky-Rubin, LLP, West Palm Beach, for appellant.

Jason M. Azzarone, Gregory S. Glasser and Mario Gomez of La Cava Jacobson &Goodis, P.A., Tampa, for appellee.

DAMOORGIAN, J.

Charles Randolph Harrell ("Plaintiff") appeals the trial court's final order dismissing with prejudice his negligence and products liability lawsuit against BMS Partners, LLC, d/b/a Broward Motorsports ("Defendant"). The lawsuit was dismissed based on an exculpatory clause contained in the parties' motorcycle sales contract. On appeal, Plaintiff argues the trial court erred in dismissing his lawsuit for the following reasons: (1) the exculpatory clause is ambiguous and unenforceable for failure to clearly identify what entity Plaintiff is releasing; (2) the issue of whether consideration was paid for the exculpatory clause is outside the four corners of the complaint; and (3) the exculpatory clause's plain language does not apply to the strict products liability claims, and to the extent it does apply to those claims, the clause contravenes public policy. We affirm on the first two issues without further comment. As to the third issue, however, we agree with Plaintiff that the exculpatory clause does not apply to the strict products liability claims and reverse.

In 2018, Plaintiff purchased a Suzuki brand motorcycle from the retailer Defendant. The signed sales contract contained the following relevant exculpatory language:

3. I, FOR MYSELF, MY HEIRS, EXECUTORS AND ASSIGNS HEREBY

A. RELEASE BMS FOR ANY LIABILITY OR RESPONSIBILITY IN ANY WAY FOR PERSONAL INJURY OR DEATH, OR OTHER DAMAGES TO ME INCLUDING PROPERTY DAMAGES, OR MY FAMILY HEIRS, OR ASSIGNS WHICH MAY OCCUR FROM MY OPERATION OR OWNERSHIP OF THE MOTORCYCLE I AM PURCHASING FROM BROWARD MOTORSPORTS WHICH MAY BE DUE OR IN PART TO HAVE BEEN CAUSED BY THE NEGLIGENCE OR GROSS NEGLIGENCE OF BROWARD MOTORSPORTS, ITS AGENTS EMPLOYEES, OFFICERS, DIRECTORS, OR SUBSEQUENT CORPORATE ENTITIES. THIS INCLUDES BOTH ACTIVE AND PASSIVE NEGLIGENCE, AS WELL AS ANY LIABILITY FOR NEGLIGENT FAILURE TO ADEQUATELY WARN WHICH I MIGHT OTHERWISE HAVE AS A CAUSE OF ACTION OR LAWSUIT AGAINST BROWARD MOTORSPORTS. FINALLY, I HEREBY UNDERSTAND IN MY OWNERSHIP AND OPERATION OF THE MOTORCYCLE THAT I EXPRESSLY ASSUME THE RISK OF ANY DANGER OR RISK OF INJURY OR DEATH WHICH MAY BE ASSOCIATED WITH THE OPERATION OF THE MOTORCYCLE ON STREETS, ROADS, HIGHWAYS, EXPRESSWAYS, OR ANY OTHER PUBLIC OR PRIVATE ROADS.

B. INDEMNIFY AND HOLD HARMLESS BROWARD MOTORSPORTS FROM ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION BY WHOMEVER MADE AND WHEREVER PRESENTED.

4. I AM AWARE THAT THIS IS A RELEASE OF LIABILITY AND A CONTRACT BETWEEN MYSELF AND BROWARD MOTORSPORTS AND SIGN IT OF MY OWN FREE WILL.

Shortly after receiving the motorcycle, Plaintiff was involved in an accident and sustained serious bodily injuries. According to Plaintiff, the front end of the motorcycle began to wobble, thrash, and violently turn as he was operating it, causing him to lose control of the motorcycle and crash into a motor vehicle. Plaintiff thereafter sued Defendant for its own negligence in assembling, setting up, servicing, repairing, and/or inspecting the motorcycle. Plaintiff also sued Defendant in its capacity as a seller in the stream of commerce for strict products liability and negligent products liability arising out of manufacturing defects, design defects, and the failure to warn of those defects. Specifically, the complaint included three strict products liability counts (counts II, III, and IV) and three negligent products liability counts (counts V, VI, and VII). Plaintiff did not add Suzuki, the motorcycle's manufacturer, as a defendant. Defendant moved to dismiss the complaint based on the exculpatory clause. Plaintiff filed a response opposing dismissal and raised therein much of the same arguments now advanced on appeal. Following a hearing, the trial court granted Defendant's motion and dismissed Plaintiff's entire lawsuit with prejudice based on the exculpatory clause.

On appeal, Plaintiff argues the trial court erred by dismissing the strict products liability counts because the exculpatory clause, by its plain language, only applies to negligence-based claims. Defendant, citing to the "any liability or responsibility in any way" language in paragraph 3.A of the exculpatory clause, counters the use of the all-encompassing words "any" and "in any way" clearly reflect the parties' agreement to relieve Defendant of liability for any potential tort claim, including claims for strict products liability.

"An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury." Elalouf v. Sch. Bd. of Broward Cnty., 311 So.3d 863, 865 (Fla. 4th DCA 2021) (citation omitted). "Public policy disfavors exculpatory contracts because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss." Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 260 (Fla. 2015). "Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy." Id. "Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away." Id. at 260-61. To determine whether such intention was made clear and unequivocal, courts are required to read the release in pari materia, giving meaning to each provision. Fresnedo v. Porky's Gym III, Inc., 271 So.3d 1185, 1186 (Fla. 3d DCA 2019).

Here, although the first sentence of paragraph 3.A. states Plaintiff is agreeing to release Defendant for "any liability or responsibility in any way for personal injury or death," the second half of the sentence contains language limiting the scope of the release to claims "which may be due or in part to have been caused by the negligence or gross negligence of Broward Motorsports." Thus, by their own choice of language, the parties agreed the exculpatory clause would only release claims sounding in negligence. Compare Sanislo, 157 So.3d at 259, 271 (because the exculpatory clause included broad and all-encompassing language releasing "any and all claims," the clause was not per se ineffective to bar a negligence action despite the absence of the terms "negligence" or "negligent acts"), with Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982) (because the exculpatory clause expressly referred to claims of negligence, the clause was limited to claims of negligence only). See also 11 Williston on Contracts § 32:10 (4th ed.) (recognizing "specific words will limit the meaning of general words if it appears from the whole agreement that the parties' purpose was directed solely toward the matter to which the specific words or clause relate," and that therefore "it is an accepted principle that general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given").

Accordingly, the exculpatory clause in this case undoubtedly applies to the ordinary negligence count (count I) and the negligent products liability counts (counts V, VI, and VII). The clause, however, does not apply to the three strict products liability counts because those counts arguably do not fall within the umbrella of a negligence claim. As recognized by this Court, "Florida tort law provides that the manufacturer of a defective product may be subject to liability under two theories: negligence and strict liability." Grieco v. Daiho Sangyo, Inc., 344 So.3d 11, 17 (Fla. 4th DCA 2022) (citation omitted). This is because "[s]trict liability theories are generally distinct from negligence" in that "[s]trict liability is not concerned with the reasonableness of a manufacturer's conduct[;] . . . [instead] the focus is on the product itself and the reasonable expectations of the consumer." Id. at 18 (third alteration in original) (citation omitted). Thus, while a strict liability claim is "to some extent a hybrid of traditional strict liability and negligence doctrine," it is nonetheless a claim separate and apart from a negligence claim. Ferayorni v. Hyundai Motor Co., 711 So.2d 1167, 1169, 1172 (Fla. 4th DCA 1998) (citation omitted) ("[W]e clarify that under Florida law, negligent failure to warn and strict liability failure to warn represent two distinct theories of recovery."); see also Fuchsgruber v. Custom Accessories, Inc., 628 N.W.2d 833, 836 (Wis. 2001) ("Strict liability for injuries caused by defective and unreasonably dangerous products . . . is liability in tort, not liability for negligence."); Hopfer v. Neenah Foundry Co., 477 S.W.3d 116, 118 (Mo.Ct.App. 2015) ("Missouri jurisprudence embraces a clear demarcation between claims of negligence and strict product liability that differentiates the evidence required to prove such claims.").

Moreover to the extent the exculpatory clause does apply to the strict products liability claims, we conclude...