In a recent case brought in Federal Court in Florida, the facts are sparse but it appears that the Plaintiff sued a veterinarian for negligence and malpractice.  The veterinarian hoped to rely on what the court termed a "hold harmless" clause in a patient treatment authorization.  The court then treated the provision as an Exculpatory Clause, noting that:
    "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.  Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy.  Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away."
    The Defendants relied on a prior case in Florida that held that a broadly worded exculpatory clause could be enforced, and that the clause need not mention the word "negligence".  
    "Here, Defendant cites to a single case for the proposition that the exculpatory clause in this case bars Plaintiff's negligence claims, the case of Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 2015). Defendant cites that case for the proposition that an exculpatory clause need not contain an express waiver of the right to sue for negligence (for negligence claims to be precluded), and Sanislo does stand for that proposition. Sanislo, however, is clearly distinguishable from this case. In Sanislo the exculpatory clause read as follows:
[Defendant is released from] any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish... any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to . [This release also includes] 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."
    But this court held that:
    "The language at issue in Sanislo was extremely broad and extremely clear, and in light of this breadth and clarity the Florida Supreme Court held that the language clearly and unequivocally precluded the plaintiff from bringing negligence claims. The waiver in Sanislo stands in stark contrast to the waiver in this case, which reads:
    I agree to hold harmless from circumstances arising out of the performance of their duties. I also acknowledge the risks associated [with treatment] have been explained to me and I understand them fully."
    The court went on to note that the enforcement of the exculpatory clause can also depend on the activity.  In the state court case relied on by the Defendants it was applied to a resident at a resort, which the court determined was not a dangerous activity, whereas in this case surgery was involved and the language of the contract was not as broad or clear on intent.
    "Further contrasting Sanislo from the instant case is in Sanislo the Florida Supreme Court noted that it was important to its decision that the activities at issue (residing at a resort) “were not inherently dangerous,” whereas in the instant case an ordinary person would contemplate a more inherently risky activity—intensive surgery.  Unlike Sanislo, the hold-harmless clause in this case does not use clear and unequivocal wording, such that an ordinary and knowledgeable person would know what he or she was contracting away—the right to sue for negligent acts. See also Torjagbo v. U.S., 285 F. App'x 615 (11th Cir. 2008) (exculpatory clauses in Florida are strictly construed against the party seeking to be relieved of liability)."
    Alarm companies are fortunate to be in an industry where the enforcement of a properly drafted exculpatory clause is enforced.  It's essential that your alarm contract contain proper terminology.  One of the reasons the Standard Form Agreements are so effective is because not only is the Exculpatory Clause clear, but the entire Agreement is unmistakable in it's intent to absolve the alarm company from liability for failure of the alarm system or alarm services.  Time to update your alarm agreements today.  Contact our Contract Administrator Eileen Wagda at (516) 747-6700 x 312 or visit our web site to access the Alarm Contract Order Form.  
for the lawyers, above case can be found at 2015 WL 7007803