Man to appeal suit against Disney over 2006 injury
Dave Peterson says exculpatory clauses in Florida put consumers at risk
Published: July 16, 2014
This is where, for most people, the story would end. In fact, if Owen Peterson had to fight this case by himself, it probably would have. “I’m already in medical debt, and I’m not making any money,” Owen Peterson says. He works in a vitamin store in his hometown, Charlottesville, Virginia. “And somehow I’m supposed to manage these legal proceedings from 1,000 miles away.”
So Dave Peterson has picked up the ball and run with it. He’s found attorneys willing to help him file an appeal, and on June 23, 2014, he helped his son file an appeal in the case; the first hearing, he says, is on Aug. 6. Which is when he intends to crawl across the state or drag the cross around town to make people pay attention.
“When it comes down to it, when something like this is stuck in front of you, you say, ‘If I don’t do something about it, nobody will,’” Peterson says, explaining why he seems to be more enmeshed in his son’s predicament than even his son. “I’m not the kind of guy who’s just going to let this go away. My neighbor and I were talking about it just last night, and she said, ‘If it was me, I would have walked away years ago.’ Well, that’s what companies like Disney and these other people rely on. I’m not walking away.”
The waiver Peterson signed is called an exculpatory clause. It’s not uncommon in Florida for companies to use them to shield themselves from liability when they host events. According to the Florida Bar Association, Florida law doesn’t necessarily favor exculpatory clauses. That doesn’t mean it won’t enforce them, though. “Exculpatory clauses, although disfavored, will be enforced if the intent to relieve a party of its own negligence is clear and unequivocal,” notes a journal article on the Florida Bar’s website, aimed at helping attorneys learn to draft exculpatory clauses that will stand up in court. “In describing exculpatory language that will be enforced, one court stated, ‘The wording of such an agreement must be so clear and understandable that an ordinary and knowledgeable party to it will know what he is contracting away.’”
In Peterson’s case, the four-paragraph waiver he signed states that he agreed “not to sue” the parties named in the waiver, even in the case of “claims based on the negligence, action or inaction” of the parties, and that it covers “bodily injury (including death).” Owen Peterson’s signature is at the bottom of the waiver, dated Nov. 9, 2006; but pre-printed in the event information section of the paper are the dates Nov. 7-12, 2006, and under sport “types,” someone has typed: “Paintball and any other activities conducted at or in conjunction with the event.”
When asked about Peterson’s situation, Kathleen Prihoda, manager of media relations for Walt Disney World, says that Peterson’s suit was dismissed because it was without merit.
Case law on exculpatory clauses and contracts in Florida shows that the courts tend to uphold them when they specifically mention that they cover negligence – but according to Michael Kliner, a senior attorney at the Florida Office of the Insurance Consumer Advocate, that doesn’t make it right.
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