Third District Court of Appeal
                               State of Florida

                           Opinion filed April 24, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1126
                          Lower Tribunal No. 16-4301
                             ________________


                              Lazaro Fresnedo,
                                    Appellant,

                                        vs.

                           Porky's Gym III, Inc.,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.

      Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.

      Law Offices of Cara Morris, PL, and Cara C. Morris (Palm Beach Gardens),
for appellee.


Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.

      EMAS, C.J.
      Lazaro Fresnedo filed a complaint against Porky’s Gym III, Inc., alleging he

sustained serious injuries when he was knocked unconscious by another customer

(Mr. Coto) who was using the gym that day on a single-day pass.1

      In his complaint, Fresnedo alleged that Porky’s had a legal duty to ensure

that it maintained its premises in a safe manner, free from dangers of which it

knew or reasonably should have known, and to warn Fresnedo of any dangers of

which it knew or reasonably should have known. The complaint further alleged

that Porky’s breached its duties to Fresnedo by allowing Mr. Coto on the premises

without first obtaining the information required to issue a single-day pass; by

failing to warn Fresnedo regarding Mr. Coto’s behavior; and by failing to remove

Mr. Coto from the facility (who allegedly displayed aggressive behavior prior to

his attack on Fresnedo).

      Porky’s moved for summary judgment based upon the affirmative defenses

of waiver and assumption of the risk, relying upon a waiver and release form

signed by Fresnedo when he became a member of Porky’s. Following a hearing,

the trial court granted final summary judgment in favor of Porky’s. This appeal

followed. We review the issue de novo, Volusia County v. Aberdeen at Ormond

Beach, L.P., 

(Fla. 2000), and consider the record in a light most


1 Fresnedo sustained facial fractures as a result of the attack and underwent facial
reconstructive surgery. The individual who attacked Fresnedo was later arrested
and charged with a felony.

                                         2
favorable to the non-moving party. Turner v. PCR, Inc., 

(Fla.

2000); Davis v. Baez, 

(Fla. 3d DCA 2016).

      Exculpatory clauses, such as the one at issue here, “that purport to deny an

injured party the right to recover damages from another who negligently causes

injury are strictly construed against the party seeking to be relieved of liability.”

Gillette v. All Pro Sports, LLC, 

, 370 (Fla. 5th DCA 2014). In

addition, courts are required to read such clauses in pari materia, giving meaning

to each of its provisions, to determine whether the intention to be relieved was

made clear and unequivocal in the contract, such that an ordinary person would

know what he was contracting away. See Covert v. S. Fla. Stadium Corp., 

938, 940 (Fla. 3d DCA 2000); Sunny Isles Marina, Inc. v. Adulami, 

, 922 (Fla. 3d DCA 1998). See also Sanislo v. Give Kids the World, Inc., 

, 260-61 (Fla. 2015) (holding: “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”);

Diodato v. Islamorada Asset Mgmt., Inc., 

, 517 (Fla. 3d DCA 2014)

(reiterating the “well-settled principle that [exculpatory] clauses are disfavored and

are narrowly construed” and reversing summary judgment where exculpatory

clause at issue was not “clear and unequivocal” in its attempt to release defendant



                                          3
from liability for specific act of negligence); 

; Tatman v.

Space Coast Kennel Club, Inc., 

, 110 (Fla. 5th DCA 2009) (noting

that the wording of an exculpatory clause “must be so clear and understandable

that ‘an ordinary and knowledgeable person will know what he is contracting

away’”) (quoting Gayon v. Bally’s Total Fitness Corp., 

, 421 (Fla.

3d DCA 2001)); Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc.,

(Fla. 2d DCA 2008); Orkin Exterm. Co. v. Montagano, 

, 514 (Fla. 4th DCA 1978) (holding that because “we do not look with favor on

exculpatory clauses, we must require the draftsmen of all contracts which contain

them to use clear and unequivocal language totally without a hint of deceptive

come-on, or inconsistent clauses”).

      After reviewing the waiver and release form signed by Fresnedo, we cannot

say that the exculpatory clauses at issue clearly and unequivocally waived Porky’s

liability for the negligence alleged by Fresnedo in his complaint. We therefore

reverse the final judgment and remand for further proceedings.

      For its contrary position, the dissenting opinion relies exclusively on a single

paragraph of the release (paragraph Four), in which Fresnedo agreed that he would

“assume full responsibility for any risk of bodily injury, death or negligence of any

of the clubs or otherwise while [I am] on the premises occupied by any of the

clubs.”



                                          4
      Although this single paragraph of the release relied upon by the dissent may

itself be plain and clear, the release is not comprised of a single paragraph, and we

must read paragraph Four together with the other paragraphs of the release to

determine whether “an ordinary and knowledgeable person will know what he is

contracting away.” 

.

      The three paragraphs immediately preceding the paragraph relied upon by

the dissent provide as follows (all emphasis added):

      1. You understand that the use of the Clubs’ facilities and
      equipment tests a person’s physical limits and carries with it a
      potential for serious injury and/or death, such as injuries caused
      by weights falling, equipment malfunctioning, cables snapping,
      defects in or improper maintenance of equipment or premises,
      inadequate supervision or instruction, intentional or unintentional
      misuse of the equipment (by you or others), the negligent acts of
      others with regard to the facilities and equipment (including the
      actions of any employees of the Club), and other dangers inherent
      in strenuous physical activity. You are aware of and accept these
      risks. You also understand and agree that it is your sole
      responsibility to determine whether you are sufficiently fit and/or
      healthy enough to safely use the equipment and/or facilities of any
      of the Clubs. You affirm that you will be sufficiently fit and
      physically trained to use the equipment of the Clubs you choose to
      use.

      2. In consideration of your membership with any of the Clubs, you,
      for yourself, and for anyone else who can claim through you, hereby
      release each of the Clubs, and their employees, officers, directors, and
      agents, from any claim (of any nature whatsoever) that you may have,
      now or in the future, for any injuries you incur while you are on the
      premises occupied by any of the Clubs, such as heart attacks,
      muscle strains, pulls or tears, broken bones, shin splints, heat
      prostration, knee/lower back/foot injuries, and any other illness,
      soreness or injury however caused, occurring during or after your


                                         5
      use of the equipment or facilities of any of the Clubs, whether
      caused by the active or passive negligence of any of the Clubs.

      3. Additionally, you, for yourself, and for anyone else who can claim
      through you, hereby release each of the Clubs, and their employees,
      Officers, directors, and agents, from any claims (of any nature
      whatsoever) that you may have, now or in the future, for any damage
      to any of your property incurred while you are on the premises
      occupied by any of the Clubs, whether caused by the active or passive
      negligence of any of the Clubs or otherwise.

The fourth paragraph reads:

      4. YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK
      OF BODILY INJURY, DEATH OR PROPERTY DAMAGE
      DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS
      OR OTHERWISE    WHILE   YOU    ARE   ON   THE
      PREMISES OCCUPIED BY ANY OF THE CLUBS.

      Paragraph Four does indeed provide that the member assumes “full

responsibility for any risk of bodily injury [or] death due to the negligence of the

clubs.” However, that language cannot be read in isolation, but instead must be

read and understood in light of, and together with, the language of preceding

paragraphs One and Two. Those two paragraphs address the “risk of bodily

injury” in much greater detail than paragraph Four, yet inexplicably do so in the

specific context of:

   - “the use of the Clubs’ facilities and equipment [which] tests a person’s
      physical limits and carries with it a potential for serious injury and/or death,
      such as injuries caused by weights falling, equipment malfunctioning,
      cables snapping, defects in or improper maintenance of equipment or
      premises, inadequate supervision or instruction, intentional or unintentional


                                          6
      misuse of the equipment (by you or others), the negligent acts of others with
      regard to the facilities and equipment (including the actions of any
      employees of the Club), and other dangers inherent in strenuous physical
      activity.” (Paragraph One)
   - “injuries you incur while you are on the premises occupied by any of the
      Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones,
      shin splints, heat prostration, knee/lower back/foot injuries, and any other
      illness, soreness or injury however caused, occurring during or after your
      use of the equipment or facilities of any of the Clubs, whether caused by the
      active or passive negligence of any of the Clubs.” (Paragraph Two)

      If (as the dissent posits) the broad language contained in paragraph Four is

so plain, clear, unambiguous and all-encompassing, why would paragraphs One

and Two be necessary at all? These three paragraphs (One, Two and Four), when

read together, could reasonably lead a person to believe that the “risk of bodily

injury [or] death” being assumed in paragraph Four refers to injuries “such as”

those specifically and extensively enumerated in paragraphs One and Two—

injuries which occur as a result of, or related to, “the use of the Club’s facilities

and equipment.”     Indeed, this is precisely how Mr. Fresnedo understood the

language of the waiver and release form. As he explained in his declaration filed

in opposition to Porky’s motion for summary judgment:

      [My] understanding of these forms was that I was giving up my right
      to pursue claims against Porky’s Gym in the event that I was injured
      while performing the activity that I came to the gym to do, which was
      work out. . . . [B]ecause of the specificity of the release, it was my


                                         7
      understanding that I was merely giving up the right to purse any
      claims against the facility if I was injured as a result of my work out.2

      We find the instant case similar in material respects to the Second District’s

decision in 

, and the Fifth District’s decision in UCF

Athletics Ass’n Inc. v. Plancher, 

(Fla. 5th DCA 2013) (quashed in

part on different grounds by Plancher v. UCF Athletics Ass’n Inc., 

(Fla. 2015)). In both cases, our sister courts held that, despite an exculpatory

clause’s waiver of liability for “any negligence” or “all claims,” other provisions in

the clauses created an ambiguity or confusion for a reasonable reader, rendering

the exculpatory clause unenforceable. See also Brooks v. Paul, 

(Fla. 4th DCA 2017) (holding that although two sentences in an exculpatory clause

“are broad and arguably encompass a negligence claim,” because “there is

additional language in the release that creates ambiguity about exactly what type of

claims are being released,” summary judgment was not proper.)


2 Regarding the affirmative defense of express assumption of the risk, the Fourth
District observed in Van Tuyn v. Zurich Am. Ins. Co., 

, 320-21
(Fla. 4th DCA 1984):
       For express assumption of risk to be valid, either by contract or by
       voluntary participation in an activity, it must be clear that the plaintiff
       understood that she was assuming the particular conduct by the
       defendants which caused her injury. Restatement of Torts, Second, §
       496B, comment d. No agreement to assume unknown risks shall be
       inferred. Therefore, unless this plaintiff subjectively understood the
       risks inherent in [the activity] and actually intended to assume those
       risks, the defense of express assumption of risk is unavailable to the
       defendants.

                                          8
      Reading the paragraphs of the waiver and release form together and in

context, we hold that it remains in dispute whether the intention to be relieved

from liability for the type of claim brought by Fresnedo is clear and unequivocal,

and whether the wording is so clear and understandable that an ordinary and

knowledgeable person would know that he was contracting away his right to

pursue the instant claim brought by Fresnedo against Porky’s.

      Reversed and remanded.

      FERNANDEZ, J., concurs.




                                        9
                                       Lazaro Fresnedo v. Porky’s Gym III, Inc.
                                       3D17-1126


      LOGUE, J. (Dissenting)

      I respectfully dissent. When Mr. Fresnedo joined Porky’s Gym III, a fitness

club, he signed a release waiving any claim of “bodily injury . . . due to the

negligence of . . . the Clubs . . . while you are on the premises.” He then sued the

Club, as he states in his complaint, for bodily injuries due to the negligent failure

of the Club “to ensure that its premises were reasonably safe and free from

dangers.” Does this release bar this cause of action? The language of the release is

so simple and direct that it could have no other meaning. Therefore, the trial court

correctly granted summary judgment because the release signed by Mr. Fresnedo

bars his cause of action for negligence against the Club.

      This appeal arises out of a case in which Lazaro Fresnedo, Appellant, sued

the Club for negligence. Mr. Fresnedo is a member of the Club. While working out

at the Club, he was viciously attacked by another patron, who was present under a

day pass. The other patron had been shadow boxing and otherwise acting

erratically when he suddenly turned and punched Mr. Fresnedo, who was knocked

unconscious and suffered serious personal injuries as a result. In his complaint,

which is captioned “Negligence,” Mr. Fresnedo alleged the Club violated its “legal

duty to ensure that its premises were reasonably safe and free from dangers.” The



                                         10
Club moved for summary judgment contending that a release signed by Mr.

Fresnedo barred his cause of action for negligence against the Club. The trial court

granted summary judgment and Mr. Fresnedo appealed.

      The only issue before this court is whether the language of the release signed

by Mr. Fresnedo bars his cause of action as a matter of contract law. The release

has nine separate numbered paragraphs, which Mr. Fresnedo individually initialed,

before signing at the bottom. The separate paragraphs release different types of

claims that Mr. Fresnedo might bring against the Club and required Mr. Fresnedo

to indemnify the Club for damages due to his own negligence. The entire release is

included in this footnote.i

      The parts of the release pertinent to this appeal read as follows:

                 RELEASE AND WAIVER OF LIABILITY
             PLEASE READ THE AGREEMENT CAREFULLY
             BEFORE SIGNING. BY SIGNING AND INITIALING
             BELOW YOU ARE AGREEING TO WAIVE YOUR
             LEGAL RIGHTS. ONCE YOU SIGN THIS
             DOCUMENT YOU WILL BE UNABLE TO BRING A
             LAWSUIT UNDER CERTAIN CIRCUMSTANCES.

                                *     *        *    *

             4.     YOU ASSUME FULL RESPONSIBILITY
             FOR ANY RISK OF BODILY INJURY, DEATH OR
             PROPERTY      DAMAGE    DUE    TO   THE
             NEGLIGENCE OF ANY OF THE CLUBS OR
             OTHERWISE WHILE YOU ARE ON THE
             PREMISES OCCUPIED BY ANY OF THE CLUBS.
             Initials LF


                                          11
      Florida law disfavors this type of contract which exculpates a person from

responsibility for his or her own negligence because it runs contrary to the policy

behind tort law that the tortfeasors should pay for the damage they negligently

inflict. “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.” Sanislo v. Give

Kids the World, Inc., 

, 260 (Fla. 2015). Indeed, “[e]xculpatory

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.” 

      Here, Mr. Fresnedo acknowledged that he was “waiving legal rights” that

would render him “unable to bring a lawsuit under certain circumstances.” He then

went on to contract with the Club that he would “assume full responsibility for any

risk of bodily injury . . . due to the negligence of . . . the Clubs or otherwise while

you are on the premises . . . .” The simple truth is that there is no ambiguity in this

perfectly clear language. The legislature could well decide that such releases

signed by consumers are illegal. But a court would be hard pressed to fashion a

rule of law requiring the release to be clearer.




                                           12
      Indeed, the majority opinion does not suggest the language of paragraph 4 is

ambiguous. Instead, the majority discovers ambiguity in paragraph 4 only by

reading it “in pari materia.” “In pari materia” simply means the intent of the parties

to a contract must be determined by examining the entire document: separate

sentences or paragraphs cannot be taken out of context. But a simple examination

of the release indicates that there is no confusion when these separate provisions

are read as components of one document.

      The paragraphs cited by the majority as creating confusion when read

together are paragraphs 1, 2, 3, and 4. Although not a model of perfect drafting,

and although some overlap occurs, these paragraphs essentially waive separate and

distinct types of claims against the Club. Paragraph 1 waives bodily injuries arising

from a claim that the Club failed to ensure Mr. Fresnedo was “sufficiently fit

and/or healthy enough” to use the Club’s gym equipment. Paragraph 2 waives

bodily injuries arising from the use of the Club’s gym equipment. Paragraph 3

waives damage to Mr. Fresnedo’s property. Paragraph 4 waives bodily injury due

to the Club’s general failure to maintain the premises.

      When read in pari materia, therefore, these four paragraphs are entirely

consistent. Moreover, the fact that each paragraph was separately numbered and

Mr. Fresnedo was required to separately initial each paragraph would signal to an




                                         13
ordinary and knowledgeable person that the paragraphs were waiving different

types of claims.

      In his affidavit cited by the majority, Mr. Fresnedo asserts he understood

that the release waived only “the right to pursue any claims against the facility if I

was injured was a result of my work out.” That is certainly a reasonable

interpretation of paragraph 2 of the release. But if the release waived only injuries

from working out, the release would have stopped with paragraph 2. Mr.

Fresnedo’s interpretation is therefore is not a reasonable reading of the release. In

fact, it is completely inconsistent with the plain language of the next paragraph,

paragraph 3, that waives claims “for any damage to any of your property incurred

while you are on the premises” and paragraph 4 that waives claims, as stated

above, for bodily injury “due to the negligence of any of the clubs or otherwise

while you are on the premises.” The broad language of these provisions are not

limited to damages that occur during a workout.

      An ordinary and knowledgeable person agreeing to this release would

understand that it did not stop at paragraph two and that the subsequent, separately

numbered paragraphs dealt with matters over and above those matters in the first

two paragraphs. Therefore, particularly when the release is read in pari materia, an

ordinary and knowledgeable person signing this release would be on notice that the

plain language of paragraph 4 released claims like the one Mr. Fresnedo brought



                                         14
here for bodily injuries due to the negligent failure of the Club “to ensure that its

premises were reasonably safe and free from dangers.”

      The cases cited by the majority do not support its interpretation of the

release at issue here. For example, Diodato v. Islamorada Asset Management, Inc.,

, 519-20 (Fla. 3d DCA 2014) merely held that summary judgment

was improperly granted when it was uncertain whether the releases applied to the

activity at issue. The plaintiff was killed during a deep sea dive. The diver charter

moved for summary judgment based on a release the plaintiff had signed months

earlier in order to participate in “basic open water instruction,” and a second

release the day before the tragedy to participate in a “shallow reef dive.’” 

Industry standards provided for a more comprehensive release which listed

the additional hazards in the more dangerous deep sea dives and the plaintiff had

never signed such a release. This court held it was unclear whether the prior

releases for the basic open water instruction and the shallow reef dive were

intended to include the later deep sea dive. 

Here there is no such

ambiguity: the cause of action at issue is for the Club’s violation of its “legal duty

to ensure that its premises were reasonably safe and free from dangers” and the

contract at issue releases and waives the “negligence of . . . the Clubs . . . while

you are on the premises.”




                                         15
         In Gillette v. All Pro Sports, LLC, 

, 370-71 (Fla. 5th DCA

2014) and Tatman v. Space Coast Kennel Club, Inc., 

, 111 (Fla. 5th

DCA 2009), the release provisions did not specifically address negligence or

include the words “negligence” or “negligent.” Here the contract signed by Mr.

Fresnedo expressly releases causes of action based on “negligence.”

         In Murphy v. Young Men’s Christian Association of Lake Wales, Inc., 

, 568-69 (Fla. 2d DCA 2008), the exculpatory language excluded “any

claims based on negligence,” but the appellate court reversed because the language

also provided that the YMCA would take “every reasonable precaution.” The court

concluded that the provision was unclear because “a reasonable reader might be led

to believe that the waiver of liability extends only to claims for injuries that were

unavoidable ‘even when every reasonable precaution’ had been taken by the

YMCA.” 

As discussed above, there is no such conflict in the release that

Mr. Fresnedo signed.

         For these reasons, the trial court got it right: Mr. Fresnedo waived the very

type of negligence claim he pursued against the Club. I would affirm the trial

court.




         i   The release reads:

                       RELEASE AND WAIVER OF LIABILITY


                                           16
PLEASE READ THE AGREEMENT CAREFULLY
BEFORE SIGNING. BY SIGNING AND INITIALING
BELOW YOU ARE AGREEING TO WAIVE YOUR
LEGAL RIGHTS. ONCE YOU SIGN THIS
DOCUMENT YOU WILL BE UNABLE TO BRING A
LAWSUIT UNDER CERTAIN CIRCUMSTANCES.

In order to obtain access to any of the gyms operated by
Porky’s Gym I, Inc., Porky’s Gym II, Inc., Porky’s Gym
III, Inc., and Porky’s Gym IV, Inc. (collectively, the
“Clubs”) and join any of the clubs as a member, you
understand, acknowledge and agree as follows

1.     You understand that the use of the Clubs’ facilities
and equipment tests a person’s physical limits and carries
with it a potential for serious injury and/or death, such as
injuries caused by weights falling, equipment
malfunctioning, cables snapping, defects in or improper
maintenance of equipment or premises, inadequate
supervision or instruction, intentional or unintentional
misuse of the equipment (by you or others), the
negligent acts of others with regard to the facilities
and equipment (including the actions of any employees
of the Club), and other dangers inherent in strenuous
physical activity. You are aware of and accept these
risks. You also understand and agree that it is your
sole responsibility to determine whether you are
sufficiently fit and/or healthy enough to safely use the
equipment and/or facilities of any of the Clubs. You
affirm that you will be sufficiently fit and physically
trained to use the equipment of the Clubs you choose
to use. Initials LF

2.    In consideration of your membership with any
of the Clubs, you, for yourself, and for anyone else
who can claim through you, hereby release each of the


                            17
Clubs, and their employees, officers, directors, and
agents, from any claim (of any nature whatsoever)
that you may have, now or in the future, for any
injuries you incur while you are on the premises
occupied by any of the Clubs, such as heart attacks,
muscle strains, pulls or tears, broken bones, shin
splints, heat prostration, knee/lower back/foot
injuries, and any other illness, soreness or injury
however caused, occurring during or after your use of
the equipment or facilities of any of the Clubs,
whether caused by the active or passive negligence of
any of the Clubs. Initials LF

3.    Additionally, you, for yourself, and for anyone
else who can claim through you, hereby release each
of the Clubs, and their employees, Officers, directors,
and agents, from any claims (of any nature
whatsoever) that you may have, now or in the future,
for any damage to any of your property incurred
while you are on the premises occupied by any of the
Clubs, whether caused by the active or passive
negligence of any of the Clubs or otherwise. Initials
LF

4.     YOU ASSUME FULL RESPONSIBILITY
FOR ANY RISK OF BODILY INJURY, DEATH OR
PROPERTY      DAMAGE    DUE    TO   THE
NEGLIGENCE OF ANY OF THE CLUBS OR
OTHERWISE WHILE YOU ARE ON THE
PREMISES OCCUPIED BY ANY OF THE CLUBS.
Initials LF

5.  YOU ARE ACKNOWLEDGE AND AGREE
THAT THE CLUBS MAKE NO EXPRESS OR
IMPLIED WARRANTIES OF ANY KIND


                          18
REGARDING MEMBERSHIP WITH ANY OF THE
CLUBS OR THE USE OF THE FACILITIESS AND
EQUIPMENT OF ANY OF THE CLUBS. Initials LF

6.     You agree that this Release shall be interpreted as
broad and inclusive as in Permitted by law of the State of
Florida and that if any portion thereof is held invalid, it is
agreed that the balance shall, notwithstanding, continue
in full force and effect. You have read this Release and
agree that no oral representations, statements, warranties
or inducements have been made to you. Initials LF

7.     You agree to indemnify and save and hold
harmless each of the Clubs from any loss, liability,
damage or cost any of them may incur as a result of your
acts or omissions on the premises of any of the Clubs.
Initials LF

8.      Any person signing below on behalf of a minor
under the age of 18 hereby acknowledges that he or she
has the legal capacity and authority to act on behalf of the
minor and to legally bind the minor to this Release, and
they agree to indemnify and hold harmless each of the
Clubs for any expenses incurred, claims made, or
liabilities assessed against any of them as a result of any
insufficiency of legal capacity or authority to act on
behalf of the minor in the execution of this Release.
Initials LF

9.    I have read and voluntarily sign this Agreement
and I agree that no oral representations, statements apart
from what is contained in this Agreement have been
made to me. Initials LF




                             19