PERSONAL INJURY CORNER
Exculpatory Clause
TED BABBITT
In Florida , exculpatory clauses which prerelease a party from negligence are not favored because they relieve a party from using due care and shift the burden of injury to the party least equipped to take the necessary precautions to avoid injury in the first place . Sanislo v . Give Kids The World , Inc ., 157 So . 3d 257 ( Fla . 2015 ). However , the Florida policy that favors the enforceability of contracts , permits the enforcement of unambiguous exculpatory clauses unless they contravene public policy where the contract clearly states in an understandable way that the Plaintiff waives the right to sue the contracting party .
In Harrell v . BMS Partners , LLC .; 4th DCA 22-121 ( November 2 , 2022 ), the Plaintiff purchased a Suzuki motorcycle and in the purchase and sales agreement that was signed by the Plaintiff the contract stated that the seller was released from any liability for any personal injury or death or other damages caused by the negligence or gross negligence of the contracting seller as well as a clause which indemnified and held harmless the seller from any claims resulting from the ownership and operation of the motorcycle .
After the purchase , the Plaintiff testified that while he was driving the motorcycle in a normal fashion the front end began to wobble , thrash , and violently turn causing him to lose control of the motorcycle and crash into a motor vehicle . The Plaintiff sued the Defendant seller for its negligence in assembling , setting up , servicing or repairing the motorcycle as a seller in the stream of commerce for strict product liability and negligent product liability . Suzuki was not joined in the suit . The trial court dismissed the entire suit relying upon the exculpatory clause .
The Fourth District reversed , holding that because the exculpatory clause expressly referred to claims of negligence it was limited to claims of negligence and did not apply to the strict liability portion of the complaint . The Fourth District expressly held that , to the extent the exculpatory clause applied to the products liability claim , that that portion of the the exculpatory clause contravened public policy and was therefore unenforceable .
In West v . Caterpillar Tractor Company , 336 So . 2d 80 ( Fla . 1976 ) the Florida Supreme Court adopted strict products liability and the theory of strict liability as set forth in the Restatement Second of Torts Section 402A .
“ In Harrell , supra the court states the following “[ b ] y adopting Section 402A , the court implicitly recognized that as a matter of public policy , rather than of contractual understanding , a duty should be placed on manufacturers to ‘ warrant ’ the safety of their products .” Fla . Steel Corp . v . Whiting Corp ., 677 F . Supp . 1140 , 1144 ( M . D . Fla . 1988 ); see also West , 336 So . 2d at 88-89 ( citing Caruth v . Mariani , 463 P . 2d 83 ( Ariz . Ct . App . 1970 ), for the proposition that “[ s ] trict tort liability is based on public policy ,” and holding “[ t ] he public policy which protects the user and the consumer of a manufactured article should also protect the innocent bystander ”; Porter v . Rosenberg , 650 So . 2d 79 , 81 ( Fla . 4th DCA 1955 ) (“ The fundamental purpose underlying the doctrine of strict products liability is to further public safety in the use of consumer goods , by imposing liability without fault upon entities that have the ability to adequately compensate the injured party , distribute the risk of loss , and deter further production of defective products .”). Moreover , while the West decision dealt with the issue of a manufacturer ’ s liability , “[ s ] ince
West , Florida courts have expanded the doctrine of strict liability to others in the distributive chain including retailers , wholesalers , and distributors .” Samuel Friedland Fam . Enters . v . Amoroso , 630 So . 2d 1067 , 1068 ( Fla . 1994 ). The West decision and its progeny therefore reflect a clear public policy to protect consumers from injuries caused by unreasonably dangerous products placed on the market by manufacturers and retailers .”
The Harrell court argued an exculpatory clause purporting to absolve a retailer of liability for strict liability for products it places on the market violates public policy . The Fourth District states “ As explained by the Florida Supreme Court , “[ t ] he underlying basis for the doctrine of strict liability is that those entities within a product ’ s distributive chain ‘ who profit from the sale or distribution of [ the product ] to the public , rather than an innocent person injured by it , should bear the financial burden of even an undetectable product defect .’”
The underlying basis for the doctrine of strict liability is that those entities within a product ’ s distribution chain who profit from the sale or distribution of the product to the public rather than the innocent person injured by it should bear the financial burden of even an undetectable product defect .
Thus the Fourth District in the Harrell case reverses the trial court and reinstates the claim for the purpose of bringing an action for product liability against the retailer for allegedly selling a product which was in a defective condition , unreasonably dangerous to the consumer , whether or not there was negligence on the part of the retailer in preparing the product for sale or for any other reason .
PBCBA BAR BULLETIN 15