Evidence Required When Seeking Defensive Summary Judgment

I love it when I get to report on my own victories. Today the Fifth District reversed a trial court’s grant of summary judgment in a personal injury case, on two important grounds. From a procedural nerd standpoint, the Court correctly held that the defendants could not get summary judgment by simply quoting the plaintiff’s deposition and arguing “he doesn’t have evidence.” The Court reiterated that “[t]he lack of convincing evidence in favor of a party opposing summary judgment is not the same as conclusive evidence in favor of the party seeking summary judgment.” A defendant seeking summary judgment “cannot simply allege that the plaintiff’s evidence may not be sufficient, but must in fact present evidence “establishing a lack of liability on their part.” The Court therefore reversed the grant of summary judgment to the parties that simply argued “he doesn’t have any evidence.”

But just as important is the Court’s interpretation of the release signed by the Plaintiff. The injury arose when Plaintiff Owen Peterson attended a paintball competition and surrounding expo at Disney World. He was hit in the head at the expo, and went to the hospital for his injuries. He was cleared for paintball, and so came back and the next day signed a release so he could participate in the paintball competition, which he did. Once he got home, he realized his head injury was worse than he initially realized, and eventually sued Disney and the vendor whose item hit him in the head. Disney sought summary judgment based on the release, which stated that it applied to injuries sustained “before, during and after” participation in the Event. The court ruled:

Our 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.” This language clearly focused the signatory on the paintball competition, not the vendor area. The parties further admitted that Disney did not require people accessing only the vendor area to sign the Waiver.

We reject Disney’s argument that the Waiver’s reference to injuries suffered “before, during or after such participation” included the November 8 incident. 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.

The case is Peterson v. Flare Fittings, Inc., Case No. 5D13-2235 (5th DCA Oct. 9, 2015)[.pdf]. This was one of the first cases I took on when I opened the doors to DPW Legal back in 2013. As the opinion notes, Peterson opposed the case pro se, after his prior attorney withdrew on the eve of trial soon after the Defendants filed their motions for summary judgment. To turn a pro se loss into an appellate win is just sweet as can be. So pleased to have gotten such a great result for my client.

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