Kinkaid v. Avis Rent-A-Car Systems, Inc., RENT-A-CAR
| Decision Date | 06 August 1973 |
| Docket Number | RENT-A-CAR,No. 72--543,72--543 |
| Citation | 281 So.2d 223 |
| Parties | Paul R. KINKAID, Appellant, v. AVISSYSTEMS, INC., Appellee. |
| Court | Florida District Court of Appeals |
R. E. Conner, Ft. Lauderdale, for appellant.
H. Eugene Fischer, of Fischer, Hinckley & Shores, Ft. Lauderdale, and Robert L. Dube , Miami, for appellee.
Affirmed.
I must respectfully dissent because in my humble opinion (exculpatory) clauses in contracts which have the effect of limiting a contracting party's liability for his Own negligent acts should be declared void as contrary to public policy.
The law has never looked with favor on provisions which relieve one party from liability for his own fault or wrong. 17 Am.Jur.2d Contracts § 188; 57 Am.Jur.2d Negligence § 31; 175 A.L.R. 8--157.
While it may be reasonable for a contracting party to limit his liability for the negligent acts of the other contracting party it seems unconscionable for that contracting party to limit liability that might result from his own failure to exercise reasonable care. cf. Aloia v. Carrier Corporation, Fla.App.1971, 244 So.2d 445.
Even if it be suggested that such an exculpatory clause, while looked upon with disfavor, should nevertheless be upheld when freely entered into by the contracting parties, such an interpretation must presuppose that the contracting parties are bargaining on equal terms. In Danna v. Con Edison Co., Inc., 1972, 71 Misc.2d 1029, 337 N.Y.S.2d 722, 725 it was observed:
It would seem to me that as between Avis, lessor, and Kinkaid, lessee, the former occupies a superior bargaining position, for it, like the other car and truck rental companies perform a public function and are sufficiently affected with the public interest as to eliminate the equality of bargaining power with members of the public. There seems to be little difference between a company that rents a truck in which goods will be placed for safekeeping during use and the category of...
To continue reading
Request your trial
-
Ransburg v. Richards
...247 (1978) (en banc); College Mobile Home Park & Sales, Inc. v. Hoffmann, 72 Wis.2d 514, 241 N.W.2d 174 (1976); Kinkaid v. Avis Rent-A-Car Sys., 281 So.2d 223 (Fla.App.1973); Crowell v. Housing Auth. of Dallas, 495 S.W.2d 887 (Texas 1973); McCutcheon v. United Homes Corp., 79 Wash.2d 443, 4......
-
Cappaert v. Junker, 53352
...and New York.2 Tenants' Council of Tiber Island-Carrollsburg Square v. DeFranceaux, 305 F.Supp. 560 (D.C.1969); Kinkaid v. Avis Rent-a-Car Systems, 281 So.2d 223 (Fla.App.1973); Old Town Development Co. v. Langford, 349 N.E.2d 744 (Ind.App.1976); Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377......
-
Rubin v. Randwest Corp., 73-103
...the dissenting opinions in Middleton v. Lomaskin, supra; Poche v. Leon Motor Lodge, Inc., Fla.App.1973, 275 So.2d 55; and Kinkaid v. Avis, Fla.App.1973, 281 So.2d 223. This court in Ivey Plants, Inc. v. FMC Corporation, Fla.App.1973, 282 So.2d 205, pointed out that the enforcement of exculp......
-
L. Luria & Son, Inc. for Use and Benefit of Fireman's Fund Ins. Co. v. Alarmtec Intern. Corp.
...upon with disfavor. Orkin Exterminating Co. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978); Kinkaid v. Avis Rent-A-Car Systems, Inc., 281 So.2d 223 (Fla. 4th DCA 1973) (dissenting opinion). Such clauses have been upheld, however, as valid and enforceable where the intention is made clear a......