TO:
FROM: Brian Rice
RE: James Sullivan and family – Liabilities for injuries sustained.
DATE:
QUESTION PRESENTED 1
Under Florida law, whether the Kettles are strictly liable for injuries sustained by five-year-old Lucy Sullivan when their dog, Baby Killer, bit Lucy in the face?
SHORT ANSWER 1
Yes, the owners of any dog who bites any person lawfully located on any public or private place, is strictly liable for damages caused by the dog bite. Lucy Sullivan was a lawful guest of the hotel when bitten by the dog. Because of this fact, the Kettles became strictly liable for Lucy’s injuries.
FACTS 1
While the Kettles, Baby Killer and Lucy Sullivan were situated by the hotel’s pool, five-year-old Lucy approached the Kettles and asked if she could pet Baby Killer. The Kettles consented but warned her against petting the dog its back. Despite the warning, Lucy did pet the dog on its back. Baby Killer reacted to Lucy’s touching its back by attacking Lucy. The attack resulted in three large lacerations to Lucy’s face.
DISCUSSION 1
Florida statue §767.04 is explicit in outlining the conditions under which the owners of a dog who bites a person will be strictly liable. § 767.04, Fla. Stat. (2016). Under the statute, contributory negligence by the bitten party which is the proximate cause of the bite reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the damages. Id.
The Kettles will likely claim that Lucy was contributorily negligent in not following the warning they gave against petting the dog on the back and her negligence was the proximate cause of the dog bite.
The issue arising out of such a claim is whether a child under the age of six is capable of being contributorily negligent? While courts have held age is not always the sole determinant of whether one can be held contributorily negligent, and that the court can also consider other factors such as intelligence, experience, training, discretion, and alertness making its determination, Lederer v. Connecticut Co., 95 Conn. 520, 111 Atl. Rep. 785; Fishburn v. Burlington & N.W.R. Co., 127 Iowa 483, 103 N.W. Rep. 481; Meserve v. Libby, 115 Me. 282, 98 Atl. Rep. 754; Mattey v. Whittier Machine Co., 140 Mass. 337, 4 N.E. Rep. 575; Rinaldi v. Levgar Structural Co., 97 N.J.L. 162, 117 Atl. Rep. 42, the fact remains that the Florida Statute does explicitly exempt persons under the age of six from such contributory negligence claims. Id at § 767.04, Supra.
CONCLUSION 1
Because Florida Statutes exempt children under the age of six from being capable of contributory negligence, the court will hold that under Florida Statute § 767.04, when Baby Killer bit five-year-old Lucy Sullivan, strict liability attached to the Kettles and any claims of contributory negligence on the part of Lucy would be barred.
QUESTION PRESENTED 2
Under Florida law, whether the exculpatory clause in the contract signed by Mr. Sullivan is enforceable and bars recovery from the hotel for damages and injuries sustained as a result of his slip and fall, when Mr. Sullivan was not advised of the presence of the clause or what the clause stated?
SHORT ANSWER 2
Probably yes, the exculpatory clause will be enforceable. While public policy does not favor the enforcement of exculpatory clauses, the countervailing policy is to enforce unambiguous exculpatory contracts which do not violate public policy.
FACTS 2
When Mr. Sullivan arrived at the hotel, the receptionist gave Mr. Sullivan what he described as a stack of paperwork that included the exculpatory clause. The clause waived his rights to recover damages from the hotel for any damages arising out of the use of the Hotel facilities.
DISCUSSION 2
In Florida, a party has a duty to understand the contents of a proposed contract before signing it. Courts presume that the person who affixes his signature to a contract has knowledge of the contents of the contract. Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012). Courts have held that by affixing a signature to a contract, the signer is manifesting his assent to enter into an agreement. Branch Banking & Trust Co. v. Creasy, 301 N.C. 44, 53, 269 S.E.2d 117, 123 (1980); Moseley v. WAM, Inc., 167 N.C. App. 594, 599, 606 S.E.2d 140, 143 (2004).
Not reading the contract prior to signing it, or acknowledging after the fact, that the contract contains provisions that are averse to the signer does not constitute grounds for avoiding the contract. Brea Sarasota, LLC v. Bickel, 95 So. 3d 1015 (Fla. 2nd DCA 2012); Mitleider v. Brier Grieves Agency, Inc., 53 So. 3d 410 (Fla. 4th DCA 2011).
When Mr. Sullivan affixed his signature to the contract, his signature was a manifestation of his assent to all of the terms of the contract, including the terms specified in the exculpatory clause.
Courts have also held that exculpatory clauses when unambiguous and are not contrary to public policy are enforceable. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B (1965). The issue of ambiguity and contravening public policy is a question of fact for the court to determine. The test in making that determination is whether the language in the clause is clearly dispositive of the intent to be relieved from liability and was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Cain, 932 So. 2d at 578 (citing Gayon v. Bally's Total Fitness Corp., 802 So. 2d 420, 420-21 (Fla. 3d DCA 2001)); Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001); cf. Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507, 509 (Fla. 1973).
CONCLUSION 2
It is likely that court will hold that the exculpatory clause is enforceable and thus bar Mr. Sullivan from seeking damages for injuries sustained when he slipped and fell down the stairs at the hotel.
QUESTION PRESENTED 3
Under Florida law, whether the exculpatory clause agreed to by Mr. Sullivan is enforceable against Sullivan’s minor child Lucy Sullivan.
SHORT ANSWER 3
Probably not, unambiguous exculpatory contracts are not enforceable when they contravene public policy.
FACTS 3
When James Sullivan signed, a contract detailing the terms of his is stay at the Broad Ripple Hotel, he signed an exculpatory clause which waived the rights of his five-year-old child Lucy to seek remedies from the hotel for any damages, or injuries resulting from or arising out the use of the facilities of the hotel during her stay.
DISCUSSION 3
While there is a countervailing policy that favors a general scheme of enforcing unambiguous exculpatory contracts, these contracts are not enforceable when they contravene public policy. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973). In Applegate, the parents of an injured child filed suit alleging the Cable Water Ski company negligently caused the injury to their child. However, because of the exculpatory contract signed by the child’s mother, on behalf of the child and both parents, the Circuit Court for Orange County (Florida) granted summary judgment, ruling that the contract unambiguously waived the claims. Applegate, at 1114.
Upon appeal by the parents, the court reasoned that Florida has an indisputably strong public policy objective to protect children from harm. Id. As parens patriae, the state's authority is broader than that of a parent's and may be invoked to limit parental authority when necessary to protect children. Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 399 (Fla. 2005). The court synthesized the scope of a Florida Statute which calls for judicial approval of settlements on behalf of a child in excess of $15,000.00, to mean that if the court did not scrutinize such financial settlements, the parent could be at risk of making a decision which will negatively impact the child’s financial support system and go against public policy to protect children. § 744.301(2), Fla. Stat. (2007). In applying this rational to the question of whether the exculpatory clause is enforceable against the child, the court reasoned that enforcement of such a clause pre-injury, would do as much harm to the child’s wellbeing as the harm the State of Florida aimed to prevent when it enacted § 744.301(2). Because of this reasoning, the court determined that in allowing the parent to decide whether a child should be allowed waive all of the child’s rights to recovery simply to allow the child to engage in certain non-essential activities equates to risky decision which will could also negatively impact the child’s financial support system and would also go against public policy to protect children. As such, the court holds that it must be able to step in to protect the child. Because of this reasoning, the court held that the exculpatory clause was not enforceable against the injured child.
CONCLUSION 3
Enforcement of the exculpatory clause against Lucy Sullivan would preclude her from pursuing any remedy for damages, or injuries resulting from or arising out the use of the facilities of the hotel during her stay. Precluding Lucy from pursuing damages for future, not yet occurring injuries is considered to be against the public policy objectives of protecting the child. Because of this reasoning, the court will not likely enforce the exculpatory clause.
QUESTION PRESENTED 4
Under Florida law, whether the hotel was contributorily negligent in allowing Baby Killer to enter and stay upon the hotel premises when the hotel failed to verify the dog’s status as a service dog?
SHORT ANSWER 4
Probably yes, if the court holds the exculpatory clause to be unenforceable against Lucy.
FACTS 4
While the hotel has a strict no pet policy, pursuant to the Americans with Disabilities Act (ADA) guidelines, the hotel allowed the Kettles to bring their dog Baby Killer onto the property to stay because the dog was presented to the hotel staff as an ADA service dog. However, the employees at the hotel erroneously believed that in asking the Kettles to verify the dog’s service dog status that they would be in violation of the ADA. Because of this belief, the employees allowed the dog to stay on the property with the kettles. It was later discovered after the dog injured Lucy, that the dog had not undergone the required training to be classified as a service dog, and thus, because of the hotel’s strict no pet policy, the dog would not have been allowed to enter upon and stay on hotel property.
DISCUSSION 4
In Florida, the status of people staying at hotels is that of an invitee. Steinberg v. Irwin Operating Co., 90 So. 2d 460, 58 A.L.R.2d 1198 (Fla. 1956). It is established that the owner of premises is charged with the duty of exercising ordinary care to keep his premises in a reasonably safe condition for the purposes to which they are adapted. He is responsible for injuries to his invitees due to latent or concealed perils, known to him or which in the exercise of reasonable care, should have been known to him, and which were by the invitee unknown or by the exercise of due care could not have been known to such invitee, and, of course, in the absence of a warning by the owner as to such dangers. Messner v. Webb's City, 62 So. 2d 66 (Fla. 1952).
Because of Lucy’s status as an invitee the hotel owed a duty of care to verify whether the dog was in fact a trained service dog pursuant to ADA standards, where the hotel could have a degree of certainty as to the character and behavior of the animal that they were exposing their guests to. Americans with Disabilities Act, 42 U.S.C. §12101. Especially since the guests were made aware of the hotel’s no pet policy, they would come to expect that the exception made to allow a dog on the premises who has been presented as a service dog, was in fact a trained and disciplined service dog. The ADA, by allowing the hotel to ask questions about Baby Killer’s service dog status provided the means for the hotel to exercise due care and identify a condition which may have been averse to the invitees of the hotel. Id. When the hotel failed to obtain the correct information about whether or not they could query the service dog status of Baby Killer, they were negligent. Because of that negligence, the hotel contributed to the injuries sustained by Lucy because if not for such negligence, the dog would not have been on the property and would not have been able to cause injury to Lucy.
CONCLUSION 4
The ADA allows parties to question persons presenting their dog as a service dog to verify the dog’s status. Because the hotel relied on erroneous information which they should have clarified, the hotel was negligent in not doing such. This negligence resulted in the hotel allowing a dog to be allowed on the property under the mask and being marked with special markings with falsely depicted the animal as being one which was specially trained and disciplined animal when in fact, it was not. Because of these facts, it is likely that a court will hold the hotel contributorily negligent and liable for a percentage of damages suffered by Lucy when Baby Killer bit her in the face.
QUESTION PRESENTED 5
Under Florida law, whether Charles Norwood is liable for damages sustained by James and Mary Sullivan, who were passengers in a taxi driven by Mr. Norwood, when Norwood suffered an epileptic seizure resulting in loss of control of the taxi and subsequent collision with another vehicle.
SHORT ANSWER 5
Yes, Mr. Norwood is likely to be held liable because of the carrier passenger relationship that was created when the parties contracted to provide transportation.
FACTS 5
Mr. Norwood was an eighty-five-year-old man who suffered from epilepsy. Despite this condition, Mr. Norwood drove a taxi for hire and contracted with the Sullivans to drive them to the hospital.
DISCUSSION 5
In Swilley, where the passenger of a taxi cab was subsequently injured because of the actions of the driver, the court recognized that upon entering the taxi for hire, a carrier passenger relationship came into existence. Because of this fact, during the ride, the same rule and degree of legal responsibility attached to the defendant as would attach to common carriers generally. See Korner v. Cosgrove, 108 Ohio St. 484, 141 N.E. 267, 31 A.L.R. 1193; Anderson v. Yellow Cab Company, 179 Wis. 300, 191 N.W. 748, 31 A.L.R. 1197; Huddy on Automobiles, 9th Ed. Sections 158, 161, pp. 307, 309, 310; Berry on Automobiles, 4th Ed. Section 1709, pp. 1465-1466; Annotations 4 A.L.R. 1501, 31 A.L.R. 1206.
The law necessitates that a common carrier must exercise the highest degree of care, foresight, prudence and diligence reasonably demanded at any given time by the conditions and circumstances then affecting the passenger and the carrier during the contract of carriage. Florida Ry. Co. v. Dorsey, 59 Fla. 260, 52 So. 963. When Mr. Norwood, knowing he was an epileptic and subject to epileptic seizures proceeded to drive the taxi, he failed to provide the highest degree of care in that he placed the safety of the Kettles at risk when he knew the possibility of losing control of the taxi due to having an epileptic seizure was foreseeable. Mr. Norwood was negligent in not taking adequate measures to insure the Kettles would not suffer injury as a result of his epileptic condition.
CONCLUSION 5
A court is likely to find Mr. Norwood liable because he was negligent in driving a taxi while suffering from epilepsy and that condition caused him to have a seizure which resulted in the loss of control of the taxi and the subsequent vehicle collision from which the Sullivans sustained damages and injuries.
QUESTION PRESENTED 6
Under Florida law, whether Rotten Orange State Taxi Service (ROSTS) is liable for injuries sustained by James Sullivan when their employee, Charles Norwood, during the course of employment as a taxi driver for ROSTS, suffered an epileptic seizure resulting in the loss of control of the taxi owned by ROSTS, causing a collision with another vehicle?
SHORT ANSWER 6
- Yes, under the doctrine of vicarious liability, ROSTS is likely to be held liable because Mr. Norwood was acting as an agent for ROSTS when Mr. Norwood established the carrier passenger relationship between he and the Sullivans.
- Yes, ROSTS will be held liable under a negligence theory if ROSTS knew about Mr. Norwood’s epileptic condition and did nothing to shield its customers from possible injury due to Mr. Norwood’s condition.
FACTS 6
- Norwood was acting as an agent of Rotten Orange State Taxi Service when he agreed to provide transportation for hire to the Sullivans to take them to the hospital in his taxi. During the trip, Mr. Norwood suffered and epileptic seizure resulting in a vehicle collision and subsequent injury suffered by the Jim and Mary Sullivan.
- Whether ROSTS was aware of Mr. Norwood epileptic condition is unknown and more information is needed to assess whether ROSTS was negligent in the hiring or retaining of Mr. Norwood.
DISCUSSION 6
(1) When ROSTS allowed Mr. Norwood use of taxi, ROSTS became vicariously liable for any damages caused by Norwood’s operation of the vehicle. Clooney v. Geeting, 352 So. 2d 1220 (Fla. Dist. Ct. App. 1977).
(2) The issue of whether ROSTS negligently hired or retained Mr. Norwood needs further investigation as to the criteria and circumstances of his employment. However, it should be noted that in the state of Florida, negligent hiring and employment have been found to be legitimate bases of recovery in the state. Id at 1216.
CONCLUSION 6
- Because of the vicarious liability doctrine, when ROSTS allowed Mr. Norwood to use the taxi, ROSTS became vicariously liable for any damages caused by Mr. Norwood while operating the vehicle.
- More information is needed to establish a claim for negligence in the hiring and or retention of Mr. Norwood in relation to his epileptic condition.