Floridians love the outdoors. Our state’s warm climate and abundant natural resources make it a prime location for outdoor recreational activities, drawing significant participation in outdoor activities. While known for its sandy beaches, golf courses, and amusement parks, many more closely associate Florida with vast wilderness, sprawling marshes, underwater caves, and open waterways. If you are an owner of undeveloped property and/or your business involves experiencing and enjoying outdoor activities, you need to be familiar with contractual waivers and releases and why they are so much more important than ever in Florida.
Residents and nonresidents alike flock to Florida’s natural areas to engage in many inherently dangerous activities: hunting, fishing, cave diving, and airboat rides, among others. These pastimes are full of inherent dangers – firearm accidents, sharp objects, operation of off-road vehicles, and close contact with alligators, venomous snakes, and other unfriendly critters that inhabit our waterways and undeveloped lands. Unavoidably, we live in one of the most diverse and ecologically rich areas of our county. Naturally, our hobbies are often full of hazards we should expect.
Historically, jurisdictions throughout the county once recognized a common law doctrine called ‘assumption of risk.’ In theory, this doctrine meant that a person engaged in activities that are themselves inherently dangerous assumed a risk of injury from those activities. For example, if you willingly participate in SCUBA diving, a reasonable, informed person should understand that this activity is inherently dangerous and there is a chance of injury—even death. By participating in the activity, you have knowledge of the dangers and have made a conscious decision to engage in it, despite the known risks. You thus assumed the risk. Makes sense, right? Why then should you be entitled to recover damages for injuries from another when you knew the risks? Many of our clients still think this is how the law works—it doesn’t.
Modernly, at least in Florida, a doctrine called comparative (or contributory) fault has taken the place of “implied” assumption of risk. Thus, a lawsuit can be filed—and is all the time—even when a person plainly assumed the risk of a dangerous activity. Ultimately, the tier of fact (most often a jury) will decide whether that person was negligent for engaging in the activity and whether that negligence should be set off from the defendant’s alleged fault, if any. That also means that, just because the injured person undertook a dangerous activity voluntarily, it does not mean they accepted the risk and released potential liability. Even where an injured plaintiff clearly assumed the risk of danger, the case will ultimately be decided by a jury.
Understanding this nuance can be very challenging for clients because, in practical terms, it means that (1) litigation will take time and result in significant expense, (2) a judge will not be able to ‘dismiss’ the case before the jury receives it, and (3) any case decided by a jury is likely to result in an unpredictable liability determination and the risk of exposure for damages. At trial, there is always inherent risks of liability exposure and a good possibility that jurors will see the facts differently than you believe.
For example, the authors of this article recently defended a lawsuit that arose from an accidental bangstick (which is a simple firearm used for alligator harvesting and other hunting applications) discharge while engaging in lawful and licensed alligator hunting. The plaintiff, a guest on a wetland mitigation tract, was a hunter and understood the risks associated with alligator hunting. Without an expressed release and waiver, the plaintiff’s own clear assumption of the inherent risks involved with alligator hunting was not enough to prevent the case from going to an eventual trial, where the odds of ordinary jurors appreciating and accepting the plaintiff’s voluntary decision to engage in this dangerous activity were very low. Inherently, the general public has been led to believe falsely that most activities can be made perfectly safe. Our client may have benefited significantly, perhaps even avoided liability, if there had been a properly drafted waiver and release of liability before engaging in the hunting activities.
History & the Law
In 1886, the Florida Supreme Court adopted a standard that was then-called ‘contributory’ negligence. See Louisville & N.R. Co. v. Yniestra, 21 Fla. 700, 701 (1886). Essentially, if you caused or contributed to your own injury by failing to use “ordinary prudence,” there was a presumption that you were at fault and such a finding barred your recovery of damages from someone else. Even then, that question was still one that needed to be decided by the jury (or a judge only in a bench trial). For nearly a century, this was Florida’s law, and a defendant could argue that an injured plaintiff implicitly (without signing anything) assumed the risk when they volunteered for a potentially dangerous activity.
As the Louisville Court illustrated,
“When a person voluntarily walks on and along the track of a railroad laid in a public thoroughfare, which he knew was used as a switch yard on which locomotives were passing to and fro night and day, where the walking on either side of said track was as good as on the track, and in doing so is run over by a passing train and killed, he has, by the failure to exercise ordinary care and prudence, directly contributed to his own misfortune, and his representative cannot recover from the company using said track damages therefor.”
While, still today, many of us would call that ‘common sense,” others found that—under certain circumstances—contributory fault was particularly harsh. The assumption of the risk doctrine evolved throughout the early and mid-20th century in Florida.
In 1977, the Florida Supreme Court, in Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977), abandoned the common law assumption of risk doctrine, with the rise of comparative fault (specifically, contributory negligence). At that time, Florida recognized ‘contributory negligence,’ which prevented recovery in personal injury cases where it was demonstrated that the injured person was more at fault for their injuries than the tortfeasor. (In 2023, Florida essentially reimplemented this doctrine through statute, but the effect in practice is still developing).
In its ruling, the Blackburn Court chose to fully abandon implied assumption of risk doctrine as a defense to liability, shifting to the comparative fault standard we see today. The court clarified that the assumption of the risk doctrine should be limited to express contracts, i.e., liability waiver or release of liability. We have all, at some point or another, signed a waiver and release. You probably did not even read it.
How should a business apply this in practice? The quick and easy answer to maximize your defense of liability for customers engaging in inherently dangerous activities is to have them sign a waiver, right? Not so fast. There are certain conditions that must be met to help keep a liability waiver enforceable. Below are some of the key considerations:
- Clear and Unequivocal Language. Liability waivers must clearly and unequivocally state that the party is released from liability for its own negligence. Exculpatory clauses are generally disfavored in Florida law, and courts require that such clauses be explicit and unambiguous to be enforceable. See Hopkins v. The Boat Club, Inc., 886 So.2d 108 (2004). As such, it is important that an exculpatory clause is strictly construed against the party seeking to be relieved of liability. Any ambiguity in the waiver will typically be interpreted in favor of the party seeking to hold the other party liable. See Peterson v. Flare Fittings, Inc., 177 So.3d 651 (2015).
- Directly Address Assumption of the Risk. It is crucial that the waiver includes assumption of the risk language. Participants should have to acknowledge their awareness of the dangers and risks associated with the activity they are engaging in and acknowledge their voluntary participation in this activity despite the risks.
- Specify the Inherent Risks. For example, if you are an outfitter engaging in underwater cave exploration, you would include language that specifically addresses the inherent dangers that come along with cave diving (tight spaces, limited oxygen, potential for equipment failure, etc.). It would also be prudent to include a clause that states “and any other risks inherent with the activity the undersigned is engaging in.” However, it is important to be specific about the risks, particularly the risk of accidental death or serious injury.
- Waive and Release Liability. It is not enough for the customer to be warned about the risks in your agreement. A warning and a release are not the same. The customer must waive the risks and release claims. It is important to make sure your release contemplates all forms of potential injury and damages, potentially including claims beyond simple negligence (i.e., gross negligence, intentional torts, and misconduct).
- Contractually Enforceable. A waiver/release is only as good as its contractual foundation. Including a waiver and release into your standard terms of service is not necessarily appropriate, unless it is clear that the waiver and release are supported by lawful consideration and expressly contracted for. This can be particularly problematic in electronic transactions, where only the purchasing customer might be bound by the release. When the activity includes minor children, additional care and consideration must be given to the release/waiver of those claims, as their guardian may or may not have that authority.
The above list is not meant to be comprehensive but highlights some of the most frequently litigated issues with releases of liability. It is extremely important to understand that a typical ‘form’ release is a risky strategy. We recommend consulting with your lawyer to form a more individualized agreement but also to help with risk management strategies in application. These services are not cost-prohibitive and can ordinarily accommodate most all business sizes and budgets.
It is not enough to simply create release language. You must also implement your release with purpose and consistency. It is equally important that any individual or business soliciting waivers from their customers keep original copies of the executed waiver to preserve its enforceability. There are certainly other ‘good practices’ that may help bolster both your liability wavier documents and your overall safety policies, including formal safety briefings, activity rules and published codes of conduct, instructional time, equipment inspections, warning signage, and a purposeful insurance strategy, are all good practices towards protecting your business and/or property. Remember also that there are many public policy concerns that go into the court’s decision making in upholding waivers.
Conclusion
While Florida law has strayed away from the principles of implied assumption of risk, there are still meaningful protections for businesses who have required their clients to execute a well-drafted waiver and release of liability. A well-drafted release, coupled with other proactive business practices, can best protect you or your business from the risk of costly litigation. If you have concerns about clients or invitees engaging in outdoor recreation or other inherently dangerous activities in your care or on your property, consulting with an experienced legal professional can provide clarity on your exposure and potential steps to limit liability.