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Florida Fourth DCA rules that plaintiff’s premises liability lawsuit against customer of plaintiff’s employer was barred by exculpatory clause in plaintiff’s employment agreement

On July 22, 2020, in Merlien v. JM Family Enterprises, Inc., et al, No. 4D19-2911, the Florida Fourth DCA affirmed a trial court’s summary judgment in favor of the defendant in a premises liability lawsuit.  Both the trial court and the Fourth DCA concluded that the lawsuit was barred by an exculpatory clause in the plaintiff’s employment agreement.  The plaintiff was employed as a security guard by a third party, AlliedBurton, a firm that provides security services for various clients.  He was assigned to work as a security guard for one of those clients, the defendant company, and was allegedly injured due to a slip and fall on the stairs at the defendant’s facility.  The defendant claimed that premises liability lawsuit was barred by a provision in the plaintiff’s  employment agreement with AlliedBurton in which he waived his right to sue any customer for injuries suffered on the job.   The plaintiff claimed that the disclaimer was ambiguous and unenforceable, citing UCF Athletics Ass’n Inc. v. Plancher, 121 So. 3d 1097 (Fla. 5th DCA 2013), quashed in part on other grounds, 175 So. 3d 724 (Fla. 2015), in which the Fifth DCA held unenforceable a college student athlete’s waiver of the school’s liability for sports related injuries.  However, the Fourth DCA distinguished Plancher, noting that the waiver in Plancher did not include a provision express stating that the student athlete was waiving his right to bring an action premised on negligence.  The Court additionally distinguished two other Fourth DCA cases,  In Brooks v. Paul, 219 So. 3d 886 (Fla. 4th DCA 2017), the Fourth DCA invalidated an exculpatory clause in an agreement between a surgeon and patient because the language was unclear and ambiguous. 219 So. 3d at 891. In so holding, the Court explained that the release was unenforceable because the disclaimer was “qualified” by the statement that the surgeon would “do the very best to take care of [the patient] according to community medical standards, which rendered the “purported release” contradictory and ambiguous. Id. The Fourth DCA compared the release to the waiver in Goyings v. Jack & Ruth Eckerd Foundation, 403 So. 2d 1144 (Fla. 2d DCA 1981), disapproved of on other grounds by Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 260 (Fla. 2015), which also included “additional language” that “create[d] ambiguity about exactly what type of claims are being released.” Brooks, 219 So. 3d at 891. The Fourth DCA noted that Goyings, ambiguity arose in a children’s camp contract in which the camp agreed to take reasonable precautions to assure the safety of the children, yet also sought to disclaim all liability. Goyings, 403 So. 2d at 1145-46. The Goyings court held this language to be ambiguous and contradictory because the camp “[b]y their own choice of language . . . agreed to take reasonable precautions to assure [the child’s] safety.” Id. at 1146.The Fourth DCA also rejected the plaintiff’s argument that the disclaimer was void as against Florida public policy, noting that the disclaimer places the plaintiff in the same position as any AlliedBarton employee who may be injured while working directly for the employer on the employer’s premises. See Suarez v. Transmontaigne Servs., Inc., 127 So. 3d 845, 847 (Fla. 4th DCA 2013) (“Where an employee covered by the workers’ compensation act is injured on the job, the employee’s sole remedy against his employer is through the provisions of the act. His employer is immune from negligence claims arising out of the same injury.” (citing § 440.11(1), Fla. Stat. (2012)). The Fourth DCA additionally noted that two other out-of-state courts have already upheld the AlliedBurton disclaimer.  See Bowman v. Sunoco, Inc., 65 A.3d 901 (Pa. 2013); Brown v. 1301 K Street Ltd. P’ship, 31 A.3d 902 (D.C. 2011).