UCF Athletics Ass'n Inc. v. Plancher, Case No. 5D11-2710

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Docket NumberCase No. 5D11-2710
Decision Date16 August 2013


Case No. 5D11-2710


Opinion filed August 16, 2013


Appeal from the Circuit Court
for Orange County,
Robert Evans, Judge.

Matthew J. Conigliaro and Joshua D.
Moore, of Carlton Fields, P.A., St.
Petersburg, and Wendy F. Lumish, of Carlton Fields, P.A., Miami, for Appellant.

Stacy D. Blank, of Holland & Knight, LLP,
Tampa, and Christopher V. Carlyle and
Shannon McLin Carlyle, of The Carlyle
Appellate Law Firm, The Villages, for


Ereck Plancher, II, a University of Central Florida (UCF) football player, collapsed and died during football practice after participating in a series of conditioning drills. After his death, Ereck's parents (the Planchers) filed a negligence action against UCF and UCF Athletics Association, Inc. (UCFAA), the statutorily1 authorized direct-support

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organization responsible for administering UCF's athletics department. After a three-week trial, the jury found UCFAA liable and awarded the Planchers damages in the amount of $10 million.2 UCFAA appeals the final judgment, arguing, inter alia, that the trial court erred when it denied UCFAA's motion for summary judgment based on a release found in Paragraph M of the signed Medical Examination and Authorization Waiver and, again, when it denied UCFAA's motion for partial summary judgment, and entered summary judgment against UCFAA, on the issue of limited sovereign immunity. While we agree with the trial court on the issue of the release, because we find UCFAA was entitled to limited sovereign immunity, we reverse the final judgment entered against it.3

Standard of Review

The standard of review governing a trial court's ruling on summary judgment is de novo. Kaplan v. Morse, 870 So. 2d 934, 936 (Fla. 5th DCA 2004). Summary judgment is only proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).


The facts surrounding the untimely death of Ereck Plancher are disturbing. Nevertheless, we need not reiterate them here. As troubling as the circumstances involved in this young athlete's death may be, our analysis is not dependent upon whether the evidence presented at trial was sufficient to establish that UCFAA's

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negligence caused or contributed to the cause of his death. The only issues we must resolve are whether the release found in the agreement to participate clause of the Medical Examination and Authorization Waiver, which was signed by Ereck Plancher, absolved UCFAA of any future negligence and, if not, whether UCFAA was entitled to limited sovereign immunity pursuant to section 768.28(2) and (5), Florida Statutes (2011). We begin our discussion with the issues surrounding the release.

A. Release

Prior to being allowed to play football for UCF, UCFAA required its players to complete a number of forms, including an agreement entitled "UCFAA, INC. SPORTS MEDICINE DEPARTMENT Medical Examination & Authorization Waiver" (hereinafter the "Authorization")4 and a scholarship agreement. The Authorization asked the players to acknowledge, affirm and represent their present physical condition, future complaints, steroid and other drug use, and use of supplements. The Authorization discussed UCFAA's policies on body piercings, medical treatment, drug testing and medical insurance. The release at issue is located on the last page of the Authorization, in Paragraph M, under the heading "Agreement to Participate." It provides the following:

I am aware that playing, practicing, training, and/or other involvement in any sport can be a dangerous activity involving MANY RISKS OF INJURY, including, but not limited to the potential for catastrophic injury. I understand that the dangers and risks of playing, practicing, or training in any athletic activity include, but are not limited to, death, serious neck and spinal injuries which may result in complete or partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforementioned dangers of participating in any athletic activity, I

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recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest. I also understand that there are risks involved with traveling in connection with intercollegiate athletics.
In consideration of the University of Central Florida Athletic Association, Inc. permitting me to participate in intercollegiate athletics and to engage in all activities and travel related to my sport, I hereby voluntarily assume all risks associated with participation and agree to exonerate, save harmless and release the University of Central Florida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Florida Athletic Association's athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with my participation in any activities related to intercollegiate athletics.
The terms hereof shall serve as release and assumption of risk for my heirs, estate, executor, administrator, assignees, and all members of my family.

In January 2007 and, again, in April 2007, Ereck Plancher initialed each page of the Authorization and signed it with an attestation that he both read and understood it.5 Based on this fact, UCFAA pled the release as an affirmative defense and moved for summary judgment, arguing that because the document Ereck signed contained a clear and unambiguous exculpatory clause, he waived his right to file any claim whatsoever against UCFAA. The trial court denied UCFAA's motion finding that "there exists a legitimate disputed fact as to whether the [Agreement] constituted an unequivocal and unambiguous release of liability." Later, the trial court precluded UCFAA from raising the issue at trial, finding that the exculpatory clause was unenforceable as a matter of

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law. On appeal, UCFAA argues it was entitled to summary judgment based on the clear language in the release. We disagree.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006) (citing Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 832 So. 2d 270 (Fla. 4th DCA 2002)). They are disfavored in the law 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. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008). Such clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1999). Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th DCA 2009). The wording must be so clear and understandable that "an ordinary and knowledgeable person will know what he is contracting away." Id. (quoting Gayon v. Bally's Total Fitness Corp., 802 So. 2d 420 (Fla. 3d DCA 2001)); see also Raveson v. Walt Disney World Co., 793 So. 2d 1171 (Fla. 5th DCA 2001). A phrase in a contract is ambiguous when it is of uncertain meaning and may be fairly understood in more than one way. Tatman, 27 So. 3d at 110 (citing Nagel v. Cronebaugh, 782 So. 2d 436, 439 (Fla. 5th DCA 2001)).

The exculpatory clause at issue here did not expressly inform Ereck that he would be contracting away his right to sue UCFAA for its own negligence. This, alone, would be enough to render the clause unenforceable in any District in Florida other than

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ours. See Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759, 759 (Fla. 5th DCA 2012) (holding that an exculpatory clause need not have an express reference to negligence in order to render it effective as to negligence actions, and certifying conflict with the First, Second, Third, and Fourth District Courts of Appeal as to this issue), rev. granted, Sanislo v. Give Kids the World, Inc., No. SC12-2409, 2013 Fla. LEXIS 1249 (Fla. June 3, 2013). The problem here is that UCFAA immediately preceded the broad waiver language with a paragraph outlining the risks inherent in any sport, and stating:

Because of the aforementioned dangers of participating in any athletic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic

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