IN A 2-1 DECISION, THE FOURTH DISTRICT UPHELD A RELEASE TO BAR A CLAIM BY AN INJURED HIGH SCHOOL ATHLETE, BASED ON A RELEASE HE AND HIS FATHER SIGNED IN CONJUNCTION WITH HIM PLAYING
Elalouf v. School Board of Broward County, 46 Fla. L. Weekly D114 (Fla. 4th DCA January 6, 2021):
A high school athlete who played varsity soccer was injured when he was thrown into an unpadded cement barrier near the soccer field during a game. Before he began the season, the athlete and his father had both signed a comprehensive release against the school board, which the trial court held supported summary judgment in the school board’s favor.
The court discussed two issues: The first was that the plaintiffs failed to properly preserve his claims for appeal because they relied on one line of argument in the trial court, and a different line of argument in the appellate court (the dissent found the issue was preserved). In this case, the plaintiff failed to argue in the trial court, any public policy reasons for not treating the release differently from a pre-injury release for a commercial business.
The court also found the exculpatory clause insulated the school district from suit as a matter of law. This was not a case where the terms were hidden in a maze of fine print, or one where the language of the release was not clear and unambiguous. Instead, the release made clear that the school board would not be responsible for the child’s safety.
Finally, the majority found that “pre-injury releases” executed as part of a commercial activity (as discussed in Kirton v. Fields, 997 So. 2nd 349 (Fla. 2008)) were inapposite. It said that the Kirton court specifically did not extend its holding (that such releases were unenforceable) when signed by parents on behalf of minor children in cases involving “non-commercial” activity.