Salas, III v. Wellington Equine Associates et al

Filing 173

ORDER denying 126 Motion for Partial Summary Judgment; denying 127 Motion for Summary Judgment; Adopting 161 Report and Recommendations. Signed by Judge Robin L. Rosenberg on 11/12/2015. (bkd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:14-CV-81483-RLR
CAMILO K. SALAS, III,
Plaintiff,
v.
BEN L. SCHACHTER, D.V.M. individually,
BEN L. SCHACHTER, D.V.M., INC.;
WELLINGTON EQUINE ASSICATES;
SCHACHTER 5320, LLC, SCHACHTER D.V.M.,
LLC; SCHACHTER MANAGEMENT, LLC,
SCHACHTER NOTES, LLC, KATHRYN B. SCHACHTER;
ALAN NIXON, D.V.M, & CORNELL UNIVERSITY,
Defendants.

/
ORDER ADOPTING MAGISTRATE’S REPORT AND RECOMMENDATIONS
THIS CAUSE is before the Court upon Defendant Kathryn Schachter’s Motion for
Partial Final Summary Judgment [DE 126] and Defendant Ben L. Schachter’s Motion for Final
Summary Judgment as to Count II for Negligence/Malpractice [DE 127]. Both of these motions
were referred for appropriate disposition to the Honorable Dave Lee Brannon. DE 153. On
October 28, 2015, Judge Brannon issued his Report and Recommendations [DE 161]
recommending that both Motions be denied. Defendant Kathryn Schachter filed objections [DE
168] and Defendant Ben. L. Schachter did not.1 The Court has conducted a de novo review of
Magistrate Judge Brannon’s Report and Recommendations, has reviewed Defendant’s
objections, has reviewed the record, and is otherwise fully advised in the premises.
Upon review, the Court finds Judge Brannon’s recommendations to be well reasoned and

1

Defendant Ben L. Schacter did file objections to another Report and Recommendation which is addressed in a
separate order.

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correct. The Court agrees with the analysis in Judge Brannon’s Report and Recommendations
and concludes that Judge Brannon’s conclusions should be adopted, however, Defendant’s
objections do warrant discussion.
The central issue before Judge Brannon was the applicability of a hold-harmless clause
that was contained in an authorization for treatment signed by Plaintiff.

Judge Brannon

concluded that because there was a question of material fact as to whether the scope of that
authorization was exceeded by Defendants, the hold-harmless clause did not apply to Plaintiff’s
claims. Judge Brannon did not cite authority for that proposition. Defendant argues that if the
scope of authorized treatment was exceeded, she cannot not be held liable because she was
merely a nurse anesthetist—she had no authority to end the procedure or otherwise object to the
scope of work performed by the attending surgeons at such time as the scope of agreed-upon
treatment was exceeded. Ultimately, Defendant’s objections are irrelevant.
Defendant’s objections are irrelevant because the hold-harmless clause did not cover the
negligent acts of Defendant for any portion of the treatment—not just the portion of the
treatment that may have exceeded that which was authorized by Plaintiff.

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. Applegate v. Cable Water Ski, L.C., 974 So.
2d 1112, 1114 (Fla. Dist. Ct. App. 2008). 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. Id. 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

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know what he or she is contracting away. Cain v. Banka, 932 So. 2d 575, 578 (Fla. Dist. Ct.
App. 2006).
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. Id. at 271. 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 . . . [and] 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 [plaintiff]. [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.
Id. at 261 (emphasis added).

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. See
id. at 269-71. The waiver in Sanislo stands in stark contrast to the waiver in this case, which
reads:
I agree to hold [Defendants] 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.
DE 126-3. 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. See id. at 271.

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Unlike Sanislo, the hold-harmless clause2 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.3 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). Accordingly, Judge Brannon’s determinations were correct
and the Court adopts his Report.
For the foregoing reasons, it is hereby ORDERED and ADJUDGED as follows:
1. Magistrate Judge Brannon’s Report and Recommendations [DE 161] is hereby
ADOPTED and supplemented by the Court’s rulings in this Order;
2. Defendant Kathryn Schachter’s Motion for Partial Final Summary Judgment [DE 126] is
DENIED; and
3. Defendant Ben L. Schachter’s Motion for Final Summary Judgment as to Count II for
Negligence/Malpractice [DE 127] is DENIED.
DONE and ORDERED in Chambers, Fort Pierce, Florida, this 12th day of November,
2015.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to Counsel of Record

2

The parties appear to dispute, to an extent, whether different law applies to waivers than to hold-harmless clauses
or whether the hold-harmless clause in this case is more properly construed as an indemnification. Here, the Court’s
decision would apply even if Sanislo was intended to apply narrowly because Florida precedent prior to Sanislo
required that negligence be expressly referenced in exculpatory clauses. See, e.g., Cox Cable Corp. v. Gulf Power
Co., 591 So. 2d 627 (Fla. 1992); Univ. Plaza Shopping Cent. v. Stewart, 272 So. 2d 507 (Fla. 1973). Notably,
however, the waiver in Sanislo did contain a hold-harmless provision, and the dissent in Sanislo indicates that the
decision in that case did apply to hold-harmless clauses. See Sanislo, 157 So. 3d at 259, 272 (“I disagree with the
decision of the majority that such explicit warning is required only for valid indemnity agreements, but not for
combined releases, indemnification, and hold harmless agreements, such as the document in this case.”) (Lewis, J.,
dissenting) (emphasis added).
3
The Court need not address whether the waiver would preclude claims for circumstances outside of the parties’
control that arose independent of any negligent acts.

4