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Brooks v. Paul

Florida Court of Appeals, Fourth District

June 7, 2017

MYRA L. BROOKS and RONALD R. BROOKS, Appellants,
v.
MICHAEL D. PAUL, M.D.; MACMILLAN, PAUL and BURKARTH, P.A., d/b/a TREASURE COAST NEUROSURGERY; and RENE M. LOYOLA, M.D., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; William L. Roby, Judge; L.T. Case No. 2013CA002699.

          Jeffrey C. Fulford of Jeffrey C. Fulford, P.A., Stuart, for appellants.

          William T. Viergever of Sonneborn Rutter Cooney Viergever Burt & Lury, P.A., West Palm Beach, for appellees.

          Ciklin, C.J.

         Myra L. Brooks and Ronald R. Brooks, the plaintiffs below, appeal the final summary judgment entered in this medical malpractice case in favor of the defendants below, Michael D. Paul, M.D., and MacMillan, Paul and Burkarth P.A., d/b/a Treasure Coast Neurosurgery. The plaintiffs argue that the trial court erred in finding that a release executed by the patient, Myra L. Brooks ("Myra"), unambiguously waived negligence claims. We agree that the release, read in its entirety, was unclear and ambiguous as to negligence claims. Accordingly, we reverse and remand for further proceedings.

         In 2013, the plaintiffs brought suit against the defendants, and others not relevant to this appeal, alleging negligence. Specifically, Myra alleged that during a spinal fusion surgery, her ureter was cut, resulting in significant injuries. The defendants moved for summary judgment based on a purported exculpatory release executed by Myra before the surgery. The release contains the following language:

As of January 1, 2003, Dr. Michael D. Paul, and the professional corporation of MacMillan, Paul and Burkarth, P.A., also known as Treasure Coast Neurosurgery, will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue Dr. Michael D. Paul, or the professional corporation of MacMillan Paul and Burkarth, P.A. for any reason. My reason for doing this is that I realize that Dr. Michael D. Paul and his staff will do the very best to take care of me according to community medical standards.

         The trial court entered summary judgment in favor of the defendants, finding the release to be "completely unambiguous" in releasing claims of negligence.

         "The standard of review of an order granting summary judgment is de novo." Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006). When "the enforceability of [a] pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo." Kirton v. Fields, 997 So.2d 349, 352 (Fla. 2008).

         "An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury." Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So.2d 270, 272 (Fla. 4th DCA 2002) (quoting O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. 5th DCA 1982)). "Exculpatory clauses 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 injury and bear the risk of loss." Loewe v. Seagate Homes, Inc., 987 So.2d 758, 760 (Fla. 5th DCA 2008). Further, such clauses "will be strictly construed against the party claiming to be relieved of liability." Murphy v. Young Men's Christian Ass'n of Lake Wales, Inc., 974 So.2d 565, 567-68 (Fla. 2d DCA 2008). '"Such clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.'" Id. at 568 (quoting Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So.2d 628, 634 (Fla. 1st DCA 1991)).

         In their motion for summary judgment, the defendants relied on Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015). In that case, the parents of a seriously ill child sued a non-profit organization that provided free vacations to such children and their families at its resort village, alleging that the organization's negligence resulted in a wheelchair lift collapsing and injuring one of the parents. Id. at 258-59. In connection with the free vacation, the parents signed a liability release form, which provided as follows:

I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants, and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind. . . .
I/we further agree to hold harmless and to release Give Kids the World, Inc. from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries ...

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