final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge. Lower Tribunal No. 15-12254
Mansfield, Bronstein & Stone, LLP, and David Stone, Gary
N. Mansfield, Ariane Wolinsky (Fort Lauderdale), for
Folk Kon, and Robert A. Stok and Natasha Shaikh, for
SALTER, EMAS and LINDSEY, JJ.
Obsessions in Time, Inc. and Marc Shaffman
("Obsessions"), appeal the trial court's order
dismissing their third amended complaint with prejudice.
Because we conclude the exculpatory clause in the lease
agreement is ambiguous and unenforceable, we reverse the
order of dismissal.
AND PROCEEDINGS BELOW
2009, Obsessions leased a booth from Jewelry Exchange
Venture, LLLP ("Jewelry Exchange") to sell classic
watches and other valuable items. Jewelry Exchange provided a
master safe in which Obsessions had the option to store their
valuable items. The lease agreement, prepared by Jewelry
Exchange, required that all valuables must be in the vault
within one hour of closing. In addition, paragraph 37 of the
lease states in relevant part as follows:
In making this lease, it is hereby agreed that lessor does
not assume the relations and duty of bailee and shall not be
liable for any loss or damage to the contents of the vault
within the premises caused by burglary, fire, or any cause
whatsoever, but that the entire risk of such loss or damage
is assumed by the lessee. The lessor shall not be liable for
any delay caused by failure of the vault doors to lock,
unlock or otherwise operate and the sole liability of the
lessor hereunder is limited to the exercise of ordinary care
to prevent the opening of said vault or boxes contained
therein by any person other than lessee or the authorized
agent of the lessee.
alleged that an employee of Jewelry Exchange allowed an
unauthorized individual to access and remove Obsessions'
items, which were stored in the master safe, resulting in a
loss in excess of $2 million. Obsessions filed suit and,
following several amendments, the operative Third Amended
Complaint asserted claims against Jewelry Exchange for breach
of contract (Count VIII) and negligence (Count IX). Jewelry
Exchange moved to dismiss the Third Amended Complaint and,
following a hearing, the trial court granted the motion and
dismissed these claims with prejudice. The trial court
later denied Obsessions' motion for rehearing, and this
review de novo an order granting a motion to dismiss for
failure to state a cause of action. Morin v. Fla. Power
& Light Co., 963 So.2d 258, 260 (Fla. 3d DCA 2007).
appeal, Obsessions contends that, contrary to the trial
court's determination that the exculpatory clause in the
lease agreement is clear and unambiguous, the clause is in
fact ambiguous, and thus, unenforceable. We agree. As the
Florida Supreme Court has observed:
Public policy disfavors exculpatory contracts 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.
Sanislo v. Give Kids the World, Inc., 157 So.3d 256,
260 (Fla. 2015) (citations omitted).
exculpatory provisions are viewed with disfavor,
"Florida law requires that such clauses be strictly
construed against the party claiming to be relieved of
liability." Sunny Isles Marina, Inc. v.
Adulami, 706 So.2d 920, 922 (Fla. 3d DCA 1998). To be
enforceable, the ...