FLORENCIO FANA, APPELLANT,
v.
ORKIN EXTERMINATING CO., INC., ETC., APPELLEE
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Florencio Fana sued Orkin Exterminating for negligence after being attacked by intruders who entered his partially tented townhouse during a fumigation procedure. The court reversed summary judgment, holding that Orkin's contractual release for vandalism, theft, and breaking and entering did not protect it from a negligence claim based on allegedly failing to complete the tenting process.
The release did not provide a defense because Fana's negligence claim was based on Orkin's alleged breach of duty in failing to complete the tenting, not on the vandalism or breaking and entering itself. A pre-incident release must clearly and specifically address the specific negligent conduct alleged to be effective as a defense.
[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 provision excluding liability for vandalism, theft, or breaking and entering does not shield a party from liability for negligence in failing to complete a cont…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
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 legal standard for when contractual releases can provide a defense to negligence claims
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFana contracted with Orkin to fumigate his townhouse, which was an end unit in a building with multiple townhouses. The contract contained a release s…
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PER CURIAM.
Florencio Fana appeals from an order of final summary judgment entered in an action for negligence. For the following reasons, we reverse.
Fana and Orkin entered into a contract for the fumigation of Fana’s townhouse. His townhouse was the end unit in a building that contained other townhouses; all the other owners had entered into similar contracts. Paragraph 2 of the contract provided that “Orkin is not responsible for vandalism, theft, or breaking and entering during fumigation and aeration procedures.” The contract further contained the following:
Dear Customer: Due to the fact that Orkin is not responsible for vandalism, theft or breaking and entering during the fumigation and aeration procedures, we are encouraging you to obtain some type of security.
On March 25, 1992, Orkin began the fumigation process but had to suspend the tenting for bad weather. Only a portion of Fana’s townhouse was tented. On the evening of March 25, Fana returned to his partially tented residence and confronted several intruders; the intruders attacked Fana and caused him significant injuries.
Fana sued Orkin for negligence. Orkin moved for summary judgment on the basis of the contract’s release and the warning to the homeowners to obtain their own security guard. The trial court entered summary judgment for Orkin, and in doing so, erred.
“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.” Witt v. Dolphin Research Ctr., Inc., 582 So. 2d 27, 28 (Fla. 3d DCA 1991).
Fana did not sue Orkin for vandalism, theft, or breaking and entering; he sued Orkin for negligence for failing to complete the tenting process and leaving his property exposed, although the other townhouses were completely covered. That alleged breach of duty is not addressed by the releases.1 In this case, as in Witt, because “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 order of summary judgment must be reversed. Id.
Reversed and remanded for further proceedings consistent with this opinion.
. On remand, the trial court is, of course, free to determine what duty, if any, Orkin owed Fana under these circumstances.
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- Walt Witt and Arlene Lovas v. Dolphin Research Ctr., Inc., 582 So. 2d 27 (Fla. 3d DCA 1991)