WALT WITT AND ARLENE LOVAS, APPELLANTS,
v.
DOLPHIN RESEARCH CENTER, INC., APPELLEE
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Plaintiffs injured during a dolphin encounter at the Dolphin Research Center sought damages for negligence and strict liability. The trial court granted summary judgment for the defendant based on a pre-incident liability release, but the appellate court reversed, holding that the release did not clearly and specifically reference negligence and therefore could not bar the negligence claim.
The court held that a pre-incident release is not effective to preclude a negligence action unless it clearly and specifically provides for elimination of liability for the releasee's negligence. Because the release contained no specific reference to negligence, it provided no defense to the negligence claim. The court declined to rule on the strict liability issue, deeming it inappropriate to decide at the summary judgment stage.
[1] A pre-incident release is ineffective to preclude an action based on the releasee's subsequent negligence unless the instrument clearly and specifically provides for a li…
[2] A release that does not specifically mention negligence does not bar a claim for negligence.
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Join FLexlaw to unlock all legal intelligence“It is settled law that a pre-incident release is not effective to preclude an action based on the releasee's subsequent negligence unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts.”
Establishes the governing legal standard that release agreements must explicitly reference negligence to be enforceable against negligence claims.
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Join FLexlaw to unlock all legal intelligenceWitt and Lovas participated in a 'dolphin experience' at the Dolphin Research Center and were allegedly injured by two porpoises. Both plaintiffs sign…
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SCHWARTZ, Chief Judge.
The plaintiffs-appellants were allegedly injured by two porpoises they had joined in a so-called “dolphin experience” operated by the defendant Dolphin Research Center, Inc. In a two count complaint, they alleged that the defendant (a) had been negligent in controlling and operating the attraction and (b) was strictly liable for injuries caused by the dolphins as a “keeper” of “wild animals.” The defendant moved for and was awarded summary judgment in its favor on the sole ground that the action was barred by the terms of a pre-“experience” release which the plaintiffs had each signed prior to their encounter with Flipper and his companion. The releases provided: I, the undersigned, in consideration of my being allowed to participate in the Dolphin/Encounter, hereby release and discharge Dolphin Research Center, Dol-phinlab, all employees and volunteers associated with the Dolphin Research Center, and the National Marine Fisheries Service from all claims, demands, actions, liabilities, and judgments which I may have or accrue as a result of my Dolphin/Encounter, or claim to have against Dolphinlab, Dolphin Research Center for all personal injuries or other damages incurred while on the premises of the Dolphin Research Center or elsewhere as a result of my Dolphin/Encounter. I also agree that I am responsible for any damages that I willfully or un-willfully or negligently inflict upon the facilities at Dolphin Research Center. I acknowledge that I have read and fully agree to the above.
It is settled law that a pre-inci-dent release is not effective to preclude an action based on the releasee’s subsequent negligence unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts. Van Tuyn v. Zurich American Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); O’Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982); Goyings v. Jack and Ruth Eckerd Foundation, 403 So. 2d 1144 (Fla. 2d DCA 1981); Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So. 2d 731 (Fla.1974); cf. Theis v. J & J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990) (specific release of liability for “negligence” effective); Bruce v. Heiman, 392 So. 2d 1026 (Fla. 5th DCA 1981) (same); Thomas v. Sports Car Club of America, Inc., 386 So. 2d 272 (Fla. 4th DCA 1981) (same). Since there is no specific reference in the releases to the appellee’s “negligence” at all, it is clear that, as a matter of law, they provide no defense to the negligence claim in this case, and that the judgment must therefore be reversed for trial on that ground.1
In the light of the fact that the case must be tried in any event, we deem it inappropriate at this time to rule on the issues of (a) whether the strict liability principles involving wild animals, see e.g., Sharp v. Levine, 528 So. 2d 1369 (Fla. 3d DCA 1988); Isaacs v. Powell, 267 So. 2d 864 (Fla. 2d DCA 1972), overruled on other grounds, 358 So. 2d 21 (Fla.1978), are applicable to the supposed friendly aquatic mammals involved here and (b) whether, if so, the terms of the releases would bar that claim, which is inherently not based on negligent conduct. In our view, these questions can best be determined, if indeed it becomes necessary to do so, upon the much fuller development of the facts which will take place after remand.
Reversed and remanded.
. The appellee insists that Hardage Enters. v. Fidesys Corp., 570 So. 2d 436 (Fla. 5th DCA 1990) supports its claim that a particular reference to "negligence" is not required. Hardage, however, involves the completely different situation of a post-claim release of liability for damages which have already occurred and is thus not applicable in any way to the present case.
Cases With Similar Vibessemantic neighbors from the corpus
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Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006)…r a release effective to bar a negligence action. See Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998). The other districts take a “bright line” position requiring such express language. See Witt v. Dolphin Research Center, Inc., 582 So. 2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Rosenberg v. Cape Coral Plumbing, Inc., 920 So. 2d 61 (Fla. 2d DCA 2005); Van Tuyn v. Zurich American Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984). Indeed, every one…
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Bender v. Caregivers OF Am., Inc., 42 So. 3d 893 (Fla. 4th DCA 2010)…lee’s ‘negligence’ at all, it is clear that, as a matter of law, they provide no defense to the negligence claim in this case, and that the judgment must therefore be reversed for trial on that ground.’” (quoting Witt v. Dolphin Research Ctr., Inc., 582 So. 2d 27, 28 (Fla. 3d DCA 1991))); see also Rosenberg v. Cape Coral Plumbing, Inc., 920 So. 2d 61, 66 (Fla. 2d DCA 2005); Levine v. A. Madley Corp., 516 So. 2d 1101, 1103 (Fla. 1st DCA 1987). CareGivers contends it was not required to make a specific refere…
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UCF Athletics Ass'n Inc. v. Enock Plancher as Personal, 121 So. 3d 1097 (Fla. 5th DCA 2013)…unambiguously waive actions of negligence. Although the other districts have adopted a “bright line” rule requiring such express language, Rosenberg v. Cape Coral Plumbing, Inc., 920 So. 2d 61 (Fla. 2d DCA 2005); Witt v. Dolphin Research Ctr., Inc., 582 So. 2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984), this court has repeatedly rejected the need for express language referring to a release of the d…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- O'Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982)
- Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973)
- Sabina van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984)
- Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 21 (Fla. 1978)
- Goyings v. The Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981)
- Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436 (Fla. 5th DCA 1990)
- Theis v. J & J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990)
- William and Jean Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980)
- Simonet v. Simonet, 289 So. 2d 731 (Fla. 1974)
- Stella v. Craine, 289 So. 2d 731 (Fla. 1974)