ETHEL BENDER, APPELLANT,
v.
CAREGIVERS OF AMERICA, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 4th DCA | 2010-08-18
No. 4D09-2930
GERBER, J., and KELLEY, GLENN D., Associate Judge, concur.
42 So. 3d 893 Florida District Court of Appeal, Fourth District (2010) Positive Treatment
Cited by 25 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Ethel Bender appeals a summary judgment against her in a negligence action arising from a vehicle accident while receiving home-health-aide services from CareGivers of America. The court reverses, holding that a pre-incident release must specifically reference the term 'negligence' to be enforceable against negligence claims, regardless of whether the defendant's liability is direct or vicarious.


Holding

The court reversed the summary judgment, holding that an exculpatory agreement must expressly include the term 'negligence' to be clear and unequivocal, and this requirement is not eliminated by the fact that the defendant's liability is vicarious rather than direct. The release was therefore ineffective to preclude Bender's negligence action.


Headnotes

[1] A pre-incident release is ineffective to preclude an action based on subsequent negligence unless the instrument clearly and specifically provides for a limitation or eli…

[2] An exculpatory agreement must expressly include the term "negligence" to clearly and specifically meet the requirement of releasing liability for negligent acts.

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

Key Quotes

“A pre-incident release is not effective to preclude an action based on the subsequent negligence of the party released unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts.”

Establishes the foundational rule that exculpatory agreements must clearly and specifically address negligence

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Bender contracted with CareGivers for home-health-aide services and periodically signed a 'Transportation Responsibility Release' that purported to re…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HAZOURI, J.

HAZOURI, J.

Ethel Bender appeals the final summary judgment entered against her and in favor of CareGivers of America. She asserts the trial court erred in granting the summary judgment to CareGivers based on her execution of a release. CareGivers avers that the release relinquishes its liability arising out of any bodily injury stemming from a vehicle-related incident. We reverse.

Bender contracted with CareGivers for home-health-aide services. At approximately two-month intervals, CareGivers had Bender sign a release entitled “Transportation Responsibility Release.” The relevant portion of the release states:

Client understands and agrees to release (hold harmless) the Aide, CareGiv*894ers of America and its representatives from any and all liability resulting from the use of the Aide’s vehicle for Client transportation. Client understands that CareGivers of America’s policy does not cover physical loss, bodily injury, property damage or any other liability, including liability towards Client, stemming from vehicle-related incidences.

Approximately two months after Bender signed the most recent release, one of CareGivers’s home-health aides was driving Bender on an errand and was involved in an automobile accident. Based on imputed negligence under the doctrine of respondeat superior, Bender sued CareGivers, alleging the aide was negligent and CareGivers was liable. Bender further alleged the aide was an employee of CareGivers and was acting in the course and scope of her employment. Pursuant to the release signed by Bender, the trial court granted CareGivers’s motion for summary judgment.

Bender asserts the trial court erred because the release and waiver executed by her did not specifically release CareGivers. She contends that in order for the release to act as an exculpatory agreement for CareGivers’s liability, it was required to refer specifically to “negligence.” We agree.

“The standard of review of an order granting summary judgment is de novo.” Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005).

When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action. Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, “the nonexistence of a genuine issue of a material fact.” If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.

Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004) (citations omitted).

A pre-incident release is not effective to preclude an action based on the subsequent negligence of the party released unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts. Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318, 320 (Fla. 4th DCA 1984). This Court has held that an exculpatory agreement must expressly include the term “negligence” to clearly and specifically meet the requirement of Van Tuyn, i.e., to be clear and unequivocal. See Travent, Ltd. v. Schecter, 718 So.2d 939, 940 (Fla. 4th DCA 1998) (“ ‘Since there is no specific reference in the release 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.’” (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 reference to negligence, as its liability, if any, is based upon vicarious liability and not its own direct negligence. Under the legal principle of re-spondeat superior, the negligence of the aide driver is imputed to CareGivers. CareGivers cites no authority for the proposition that imputed negligence eliminates the requirement to include the term “neg*895ligence” in its release in order to avoid liability. We, therefore, reverse the trial court’s entry of summary judgment.

Reversed.

GERBER, J., and KELLEY, GLENN D., Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (14 total)

  • Fla. Atl. Univ. Bd. OF Trs. & Scott Rubin v. Lindsey, 50 So. 3d 1205 (Fla. 4th DCA 2010)
    …t erred and that there are genuine material issues of fact that are in dispute, thereby precluding summary judgment. We agree and reverse. “The standard of review of an order granting summary judgment is de novo.” Bender v. CareGivers of Am., Inc., 42 So. 3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So. 2d 217, 218 (Fla. 4th DCA 2005)). Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other mater…
  • Gafoor Jaffer and Nina Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199 (Fla. 4th DCA 2015)
    …tate a cause of action.1 Appellate Analysis “The standard of review of an order granting summary judgment is de novo.” Fla. Atlantic Univ. Bd. of Trs. v. Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th DCA 2010) (quoting Bender v. CareGivers of Am., Inc., 42 So. 3d 893, 894 (Fla. 4th DCA 2010)) (internal quotation marks omitted). “When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.” Allenby & Assocs., Inc. v. Crown St. Vincent…
  • Oliver v. Winn-Dixie Store, Inc., 291 So. 3d 126 (Fla. 4th DCA 2020)

Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw