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Exculpatory Clauses MUST be Clear and Unequivocal

I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign.  Such documents are intended to have legal effect.

By way of example, in Fresnedo v. Porky’s Gym III, Inc., 44 Fla. L. Weekly D1029a (Fla. 3d DCA 2019), the plaintiff sued his gym in negligence claiming he was injured by another person in the gym after this other person attacked him.  The gym relied on a waiver and release document the plaintiff signed in order to become a gym member claiming the plaintiff released it of all liability. 

A waiver and release clause in a document is referred to as an exculpatory clause.

Exculpatory clauses, such as the one at issue here, that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.  In addition, courts are required to read such clauses in pari materia, giving meaning to each of its provisions, to determine whether the intention to be relieved was made clear and unequivocal in the contract, such that an ordinary person would know what he was contracting away. 

Fresnedo, supra (internal quotations and citations omitted).

The court analyzed the entire waiver and release document (since it was reviewed in pari materia with the other clauses in the document) and determined that the exculpatory clause (waiver and release) did NOT clearly and unequivocally waive the gym’s liability for the type of negligence alleged by the plaintiff in his complaint.  In particular, the waiver and release was not unequivocal that it released the gym if the plaintiff was injured from an altercation with another person at the gym. 

Had the waiver and release clause in the document been clear and unequivocal, the plaintiff would probably be out of luck in his suit against the gym.  The fact that the gym’s waiver and release was not clear gave the plaintiff the ability to bypass the waiver and release and sue the gym for negligence.



Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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