On November 8, 2006, Owen Peterson arrived at the Wide World of Sports Complex — a property owned by Disney — for the 2006 PSP Orlando World Cup (the “Event”), hosted by Paintball Sports Promotions, LLC (“PSP”), from November 7 to 12.
Disney stated that the Event consisted primarily of a paintball tournament, but that it also “served as a trade show where vendors set up booths outdoors to advertise and sell paintball-related items to participants and spectators.” Peterson was not scheduled to compete in the games until November 10.
Balloon (10 feet in diameter) Struck Guest’s Head
Peterson claimed that, while walking through the vendor area on November 8, he was injured when a balloon labelled with Crossfire’s corporate logo made contact with his head.
He described the balloon as 10 feet in diameter, tethered to a tree beside a tent operated by Flare or Crossfire, and flying between 70 to 100 feet in the air.
Peterson claimed that the impact from the balloon buckled his knees, knocked his sunglasses from his head, and left him immediately dazed and in pain.
Peterson speculated that a gust of wind may have blown the balloon towards the ground, but admitted uncertainty about the exact cause of the balloon’s sudden descent.
Injured Man and His Friends Reported the Incident to Disney
Peterson testified that two of his friends witnessed the balloon hitting his head and that, immediately after the incident, a third friend approached the tent to notify the staff of the incident and tell them to bring down the balloon.
After the staff complied with the request, Peterson reported the incident to a Disney manager, who allegedly assured him that Disney would pay for his bills and told him to go to the hospital to “get [himself] checked out.”
Later that day, Peterson sought medical treatment at a hospital and, after negative X-ray results, was discharged with prescribed muscle relaxants and pain relievers.
On November 10, 2006, Peterson returned to the Wide World of Sports Complex to compete in the paintball competition. Before participating in the games, Peterson was required to sign the “Disney Sports Waiver and Permission Form” (the “Waiver”).
Waiver Included Paintball and Other Activities at Event
The Waiver identified PSP as the “Event Host” and defined the “Sport Type(s)” as “Paintball and any other activities conducted at or in conjunction with the Event.”
Peterson read the Waiver, understood that his signature declared his fitness to play paintball, and then signed the Waiver. Peterson’s team was eliminated from the competition on November 10, and Peterson returned to his home in Virginia on November 12.
Guest Sues Disney and Others
On November 5, 2010, Peterson sued Flare, Crossfire, and Disney for injuries allegedly sustained from the balloon impact.
He claimed that:
- Flare negligently created a “dangerous condition” at the vendor tent.
- Crossfire negligently created a “dangerous condition” at the vendor tent.
- Disney was negligent for failing to control the Event on its property.
In February 2011, Flare, Crossfire, and Disney responded to the lawsuit and denied liability. Two years later, Disney added a defense that Peterson’s execution of the Waiver, “expressly waiving and releasing all claims and agreeing to indemnify [Disney],” prevented his claims against Disney.
The appeals court addressed Disney’s argument that the Waiver’s exculpatory clause released Disney from any liability for Peterson’s injury. The court noted that exculpatory clauses purport to deny an injured party the right to recover damages from a person negligently causing his injury.
Waiver’s exculpatory clause disfavored in Florida
These clauses are disfavored in Florida because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably the least equipped to take the necessary precautions to avoid injury and bear the risk of loss.
These clauses are “strictly construed against the party seeking to be relieved of liability.”
A pre-claim exculpatory clause requires specific language because of the uncertainty of future events.
Party Must be Aware and Accountable of Circumstances Related to Injury for Post-Claim Release to Be Valid
On the other hand, consideration for a post-claim release — at issue in this case — arises from the parties’ awareness “of the circumstances related to the injury and the injured party can reasonably be held accountable for fully appreciating the implications of a general release.”
No awareness or accountability occurred in this case.
The appeals court said that its analysis of this post-claim release must evaluate whether both parties knowingly gave clear and valid consideration in the Waiver.
The Waiver specifically stated, “In consideration of my and/or my child or ward’s participation in the Sport Type(s) and Event referenced above and any related activities (collectively, the `Event’), wherever the Event may occur, I agree to assume all risks incidental to such participation.” The Waiver further notified the “Participant” that by signing the Waiver he declared himself “physically fit” and possessing “the skill level required to participate in the Event and/or any such activities.”
Waiver Focused on Paintball Competition, Not the Vendor Area
The appeals court said that “this language clearly focused the signatory on the paintball competition, not the vendor area.
People going to only the vendor area weren’t required to sign waiver
The parties further admitted that Disney did not require people accessing only the vendor area to sign the Waiver.
Court Says Waiver didn’t include the injury from this incident
The appeals court rejected Disney’s argument that the Waiver’s reference to injuries suffered “before, during or after such participation” included the November 8 incident.
Waiver didn’t say it included incidents before its signing
The Waiver failed to clarify that it included any incident that occurred before its signing, and thus failed to notify Peterson of a post-claim release.
Peterson presented very little evidence demonstrating a dangerous condition at the Event or a duty owed by Crossfire.
However, Peterson provided evidence that the offending balloon displayed Crossfire’s logo and was tethered to a tree located near a tent operated by Flare or Crossfire.
Further, Peterson provided testimony that, following the accident and upon request by Peterson’s friend, a representative from the tent removed the balloon from the vendor area. This evidence presented issues of fact regarding Flare’s and Crossfire’s liability for positioning, securing, and maintaining the offending balloon in a condition safe for people accessing the vendor area.
Court Lets Case Continue Towards Trial
The court let the case continue against Disney, Flare and Crossfire. This isn’t my case, though I am currently handling several claims against Walt Disney World in Orlando.
This case is Peterson v. Flare Fittings, Inc., Fla: Dist. Court of Appeals, 5th Dist. 2015. Attorneys from the Seipp, Flick law firm in Lake Mary, Florida represented Disney.
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