MYRA L. BROOKS and RONALD R. BROOKS, Appellants,
MICHAEL D. PAUL, M.D.; MACMILLAN, PAUL and BURKARTH, P.A., d/b/a TREASURE COAST NEUROSURGERY; and RENE M. LOYOLA, M.D., Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; William L. Roby, Judge; L.T. Case No.
Jeffrey C. Fulford of Jeffrey C. Fulford, P.A., Stuart, for
William T. Viergever of Sonneborn Rutter Cooney Viergever
Burt & Lury, P.A., West Palm Beach, for appellees.
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.
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.
trial court entered summary judgment in favor of the
defendants, finding the release to be "completely
unambiguous" in releasing claims of negligence.
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).
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)).
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 ...