THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE

v.

STETSON UNIVERSITY, INC.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE,

Appellant,

v. Case No. 5D21-2547 LT Case No. 2018-12178-CIDL STETSON UNIVERSITY, INC.,

Appellee. ________________________________/ Opinion filed December 30, 2022

Appeal from the Circuit Court for Volusia County, Kathryn D. Weston, Judge.

A. Lance Reins, Rainey C. Booth, Jr., and Joanna Greber Dettloff, of Mendes, Reins & Wilander, PLLC, Tampa, and Christopher Klemawesch, and Jason M. Melton, of Whittel & Melton, LLC, Spring Hill, and Romero Pearson, of Pearson Law Group, LLC, Lawrenceville, GA, for Appellant.

Michael R. D'Lugo, and Richard E. Ramsey, of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellee.

EVANDER, J.

In this wrongful death case, the Estate of Nicholas Adam Blakely, by

and through Michelle Wilson, as personal representative (“Wilson”), timely

appeals a final judgment entered after the trial court granted summary

judgment for the defendant, Stetson University, Inc. (“Stetson”). The trial

court found that two identical releases signed by Blakely in order to play

football for Stetson were sufficiently clear to bar claims brought against

Stetson arising from Blakely’s cardiac death after participating in a football

practice.

On appeal, Wilson raises two issues. First, she contends that the

language in the releases was insufficient to be enforceable as a matter of

law. Second, she argues that genuine issues of material fact exist concerning

the scope of the release and whether Stetson’s alleged tortious conduct fell

within that scope. We find merit to Wilson’s first argument and, accordingly,

we reverse the final judgment entered in favor of Stetson. Because we find

the releases were unenforceable, we find it unnecessary to address Wilson’s

second argument.

On cross-appeal, Stetson argues that if this Court reverses the final

judgment, it should also reverse the trial court’s order allowing Wilson to add

a claim for punitive damages. We find merit to the cross-appeal, and

accordingly, we reverse that order as well.

Nicholas Blakely was a student and scholarship football player at

Stetson in 2016 and 2017, his freshman and sophomore years in college. He

pulled himself out of an afternoon football practice on August 28, 2017,

complaining to an assistant athletic trainer that he was feeling dizzy and that

his chest felt tight. The assistant athletic trainer took Blakely to the sideline,

took his pulse,¹ gave him water to cool down, removed his helmet, loosened

his shoulder pads, and had him stand in the shade. Trainers continued to

monitor Blakely’s symptoms. However, after resting on the sideline for

approximately forty to forty-five minutes, Blakely collapsed.

In addition to calling 911, Stetson employees attempted various

emergency medical procedures in an unsuccessful effort to revive Blakely.

Blakely was transported to the hospital, where he ultimately died.

There was record evidence that during an April 2017 practice, Blakely

had complained to an assistant athletic director of chest pain. He also

advised the trainer that he had experienced one or two incidents of chest

pain in high school, but both of those incidents had resolved quickly. The

chest pain incident of April 2017 also resolved in just a few minutes. The

assistant athletic trainer did not document the April incident or otherwise do

anything with the information provided by Blakely. Furthermore, when

Blakely returned to school after summer break, Stetson did not have him

undergo a physical examination prior to him participating on the football team

for the upcoming season.

There is also record evidence that on the morning of August 28, 2017,

the day Blakely died, Blakely advised the head football athletic trainer that

he was not feeling well, that he had a bad cough, chest congestion, and

shallow breathing. The trainer took Blakely’s temperature which was

negative for fever. The trainer believed Blakely had a cold and did not refer

him to the student health clinic. Blakely was permitted to continue

participation in the planned activities for the day without restriction.

The operative amended complaint included counts for negligence and

breach of fiduciary duty. In its answer, Stetson raised as an affirmative

defense that Blakely had signed two identical releases prior to his

participation on the football team in 2016 and 2017, which barred the claims

brought against Stetson. The releases signed by Blakely read as follows:

STETSON UNIVERSITY DEPARTMENT OF ATHLETICS Athletic Participation Release of Liability and Waiver of Liability

Please Read Carefully I am aware that playing or practicing to play/participate in any sport can be a dangerous activity involving many risks of injury. I understand that the dangers and risks of playing or participating/practicing may include, but are not limited to: death, serious neck injury, serious spinal cord injury, which may result in complete or partial paralysis, brain damage, serious injury to virtually all internal organs, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, serious injury or eye impairment, and serious injury to other aspects of my body, general health and well-being. I understand that the dangers and risks of playing or participating/practicing in the Stetson University Athletic Department programs may result not only In serious injury, but in a serious impairment of my future abilities to earn a living, to engage in other business, social, and recreational activities, and generally to enjoy life. Because of the dangers and risks involved in participating in intercollegiate athletics, I recognize the importance of following the Coaches and Sports Medicine staff instructions regarding playing techniques, conditioning, rehabilitation/ treatment recommendations and team rules, etc., and agree to obey such instructions. In consideration of Stetson University permitting me to play/participate for Stetson University intercollegiate athletics in all activities related to the team, including, but not limited to: trying out, practicing, playing/participating or team travel in that sport, I hereby assume all risks associated with participation and agree to hold Stetson University, it's [sic] trustees, administration, coaches, athletic trainers and athletic training interns from any and all liability, actions, causes of actions, debts, claims or demands of any kind or nature which may

arise by or in connection with my participation in any activities related to the Stetson University athletic program. The terms hereof shall serve as a release and assumption of risk for myself, my heirs, estate, executor, administrator, assignees and for all members of my family. The terms hereof shall serve as a complete release and waiver of liability for myself, my heirs, estate, executor, administrator assignees, and for all members of my family. (emphasis added).

In its motion for summary judgment, Stetson argued that the releases

clearly and unambiguously released Stetson from any and all liability arising

from Blakely’s participation in Stetson football activities. In response, Wilson

argued, inter alia, that the releases did not mention negligence and contained

contradictory and ambiguous provisions rendering the releases

unenforceable. In granting Stetson’s motion, the trial court found that the

releases were “clear and understandable so that an ordinary and

knowledgeable person would know what is being contracted away” and

“would be clear to even someone who is not an adult that executing them

would release all claims.”

We review orders granting summary judgment de novo. Volusia Cnty.

v. Aberdeen at Ormond Beach, L.P., 60 So. 2d 126, 130 (Fla. 2000). Here,

we are called upon to determine the enforceability of the exculpatory

provisions set forth in Stetson’s Athletic Participation Release of Liability and

Waiver of Liability.

“An exculpatory clause purports to deny an injured party the right to

recover damages from a person negligently causing his injury. 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 the injury and bear the

risk of loss. Such clauses are strictly construed against the party seeking to

be relieved of liability. Thus, exculpatory clauses are enforceable only where

and to the extent that the intention to be relieved from liability is made clear

and unequivocal. The wording must be so clear and understandable that an

ordinary and knowledgeable person will know what he is contracting away.”

UCF Athletics Ass’n, v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013)

(internal citations and quotations omitted), approved in part, quashed in part,

175 So. 3d 724 (Fla. 2015).

In the present case, the exculpatory clause did not expressly inform

Blakely that by executing the document at issue, he would be contracting

away his right to sue Stetson for Stetson’s own negligence. Although this

omission does not, standing alone, render the exculpatory clause

unenforceable, see Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla.

2015), it is a factor for a court to consider in determining whether the

exculpatory clause is clear and unambiguous. Plancher, 121 So. 2d at 1101,

1102; see also Sanislo, 157 So. 3d at 271 (“Despite our conclusion [that an

exculpatory clause can be effective to bar a negligence action despite the

absence of expressed language referring to the release of the defendant for

its own negligence], we stress that our holding is not intended to render

general language in a release of liability per se effective to bar negligence

actions.”).²

Contrary to Stetson’s suggestion, the Sanislo decision did not expressly or implicitly overrule this court’s determination in Plancher that the failure to expressly reference that the defendant was being released for its own negligence could operate with other factors to invalidate an exculpatory clause. Furthermore, none of the seven justices suggested a belief that the absence of the words “negligent” or “negligent acts” was meaningless. To the contrary, the three dissenting justices concluded that the words were required, while the two justices in the majority who opined on the issue

In addition, there are at least two provisions which, combined with

Stetson’s failure to expressly inform Blakely that he was contracting away

his right to sue Stetson for Stetson’s negligence, render the exculpatory

provision unclear and ambiguous. First, immediately preceding the

exculpatory clause, Blakely was advised that it was important that he comply

with Stetson’s medical staff’s instructions regarding, inter alia, conditioning

and treatment and, indeed, was required to obey such instructions. As was

stated in Plancher, this type of language, when coupled with a clause that

does not expressly state that the athlete would be waiving a negligence

action, could reasonably lead the athlete to believe that the university “would

be supervising his training and instructing him properly (non-negligently),

and that he was only being asked to sign the exculpatory clause to cover

injuries inherent in the sport.” Plancher, 121 So. 3d at 1102; see also Murphy

v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565, 568–

69 (Fla. 2d DCA 2008) (holding where waiver expressly releasing YMCA

from any claims based on YMCA’s negligence also included provision

suggesting that YMCA would take “every reasonable precaution” against

accidents, waiver was unenforceable because a reasonable reader might be

agreed “that it may be better practice to expressly refer to ‘negligent’ or ‘negligent acts’ in an exculpatory clause.” Sanislo, 157 So. 3d at 270.

led to believe that waiver of liability only extends to claims for injuries that

were unavoidable “even when every reasonable precaution” had been taken

by YMCA; “[C]onfusion results from the juxtaposition of the ‘every

reasonable precaution’ provision with the provision for the release of ‘any

claims based on negligence.’”).

Second, the final two sentences of the releases state that the releases

serve as a release “for myself,” not “by” myself. Specifically, these sentences

read, in relevant part: “[T]he terms hereof shall serve as a release and

assumption of risk for myself . . .” and “The terms hereof shall serve as a

complete release and waiver of liability for myself, . . . .” (emphasis added).

As Wilson observes, the word “for” is defined to mean “used to indicate the

person or thing that something is sent or given to.” In other words, the use of

the word “for” can suggest that the terms of the release are for the benefit of

Blakely, that is, if he follows the instructions of Stetson’s athletic department

personnel and causes injury to another while participating in the dangerous

activity of playing football, he is released from liability.

As we have previously observed, exculpatory clauses are to be strictly

construed against the party seeking to be relieved of liability. Here, Stetson’s

Athletic Participation Release of Liability and Waiver of Liability form:¹) failed

to expressly inform Blakely that he was contracting away his right to sue

Stetson for Stetson’s own negligence,²) used language that could

reasonably lead one to believe that the university would be supervising and

training properly so that he was only being asked to sign the exculpatory

clause to cover injuries inherent in a sport, and 3) used language suggesting

that the terms of the release were for Blakely’s benefit. The combination of

these factors supports a determination that the exculpatory clause was not

clear and unambiguous. As a result, we conclude that the exculpatory clause

relied upon by Stetson is unenforceable and that the trial court erred in

granting summary judgment in favor of Stetson.

Cross-Appeal

A trial court’s order granting or denying a motion to amend complaint

to add a claim for punitive damages is reviewed de novo. Est. of Despain v.

Avante Grp., Inc., 900 So. 2d 637, 644 (Fla. 5th DCA 2005). The appellate

court views the record evidence and the proffered evidence in the light most

favorable to the plaintiffs and accepts said evidence as true for the purpose

of reviewing whether a reasonable basis exists for punitive damages. Id.

A defendant may be held liable for punitive damages only if the trier of

fact finds that the defendant was guilty of intentional misconduct or gross

negligence. See § 768.72(2), Fla. Stat. (2017). In the instant case, Wilson

did not allege that Stetson engaged in intentional misconduct but rather

relied solely on allegations of gross negligence.

Section 768.72(2)(b) defines “gross negligence” as conduct “so

reckless or wanting in care that it can constitute a conscious disregard or

indifference to the life, safety, or rights of persons exposed to such conduct.”

Here, Wilson argues that punitive damages are justified because:

(1) [D]espite being directly put on notice of numerous agency guidelines and best practices to the contrary – Stetson, through its managing agents including its Director of Sports Medicine, failed to implement ECG screening of student-athletes based at least in part on the cost of implementing such screening, failed to implement any emergency action plan or policies and procedures regarding Sudden Cardiac Death, and failed to provide its athletic trainers and coaches with any specialized training dealing with Sudden Cardiac Death. (a) . . . Stetson athletic trainers and coaches were made aware of [Blakely’s] repeated complaints of chest pain, shortness of breath, congestion, dizziness, and an “alarming” elevated heart rate that, according to a Stetson Athletic Trainer, should have been a red flag when combined with his other symptoms. But, due to the lack of policies and procedures, training, and emergency action plans at Stetson, the athletic trainers and coaches did not treat these textbook signs of cardiac distress as a cardiac emergency as they should have, resulting in [Blakely’s] death. . . . ; (2) [Stetson] actively and knowingly participated in the company’s practice of declining to implement use of ECG screening, specialized training, emergency action plans, and policies and procedures in accordance with numerous guidelines and best practices to protect student-athletes from the leading cause of unexpected deaths in NCAA Athletes and allowing its athletic trainers to train athletes in complete ignorance and

disregard of Sudden Cardiac Death while knowing that such a practice was grossly negligent; and (3) . . . Stetson’s officers, directors or managers – including its Director of Sports Medicine who was the ultimate decision-maker on all matters at issue in this case – knowingly condoned, ratified, or consented to the grossly negligent and recklessly indifferent conduct by failing to respond in any way to the threat of Sudden Cardiac Death despite being put on notice of the life threatening issue, the position of various agencies, and related best practices. There is record evidence that supports some of those allegations.

However, taking the record evidence and proffered evidence in the light most

favorable to Wilson, we conclude that Wilson has not met the threshold

necessary to state a claim for punitive damages. The Florida Supreme Court

has stated that: “[t]he character of negligence necessary to sustain an award

of punitive damages must be of a ‘gross and flagrant character, evincing

reckless disregard of human life, or of the safety of persons exposed to its

dangerous effects, or there is that entire want of care which would raise the

presumption of a conscious indifference to consequences, or which shows

wantonness or recklessness, or a grossly careless disregard of the safety

and welfare of the public, or that reckless indifference to the rights of others

which is equivalent to an intentional violation of them.’” Valladares v. Bank

of Am. Corp., 197 So. 3d 1, 11 (Fla. 2016) (quoting Owens-Corning

Fiberglass Corp. v. Ballard, 749 So. 2d 43, 46 (Fla. 1999)). Wilson’s evidence

falls short of meeting that standard. Accordingly, we conclude that the trial

court erred in granting Wilson’s motion to amend complaint to add a claim

for punitive damages.

REVERSED and REMANDED.

LAMBERT, C.J. and HARRIS, J., concur.