DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CHARLES RANDOLPH HARRELL,

Appellant,

v.

BMS PARTNERS, LLC, d/b/a BROWARD MOTORSPORTS,

Appellee.

No. 4D22-121

[November 2, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Carol Lisa Phillips, Judge; L.T. Case No. CACE 

20-013803 (25).

Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather & LittkyRubin, LLP, West Palm Beach, for appellant.

Jason M. Azzarone, Gregory S. Glasser and Mario Gomez of La Cava 

Jacobson & Goodis, P.A., Tampa, for appellee.

DAMOORGIAN, J.

Charles Randolph Harrell (“Plaintiff”) appeals the trial court’s final 

order dismissing with prejudice his negligence and products liability 

lawsuit against BMS Partners, LLC, d/b/a Broward Motorsports 

(“Defendant”). The lawsuit was dismissed based on an exculpatory clause 

contained in the parties’ motorcycle sales contract. On appeal, Plaintiff 

argues the trial court erred in dismissing his lawsuit for the following 

reasons: (1) the exculpatory clause is ambiguous and unenforceable for 

failure to clearly identify what entity Plaintiff is releasing; (2) the issue of 

whether consideration was paid for the exculpatory clause is outside the 

four corners of the complaint; and (3) the exculpatory clause’s plain 

language does not apply to the strict products liability claims, and to the 

extent it does apply to those claims, the clause contravenes public policy. 

We affirm on the first two issues without further comment. As to the third 

issue, however, we agree with Plaintiff that the exculpatory clause does 

not apply to the strict products liability claims and reverse.
2

In 2018, Plaintiff purchased a Suzuki brand motorcycle from the 

retailer Defendant. The signed sales contract contained the following 

relevant exculpatory language:

3. I, FOR MYSELF, MY HEIRS, EXECUTORS AND ASSIGNS 

HEREBY

A. RELEASE BMS FOR ANY LIABILITY OR 

RESPONSIBILITY IN ANY WAY FOR PERSONAL INJURY 

OR DEATH, OR OTHER DAMAGES TO ME INCLUDING 

PROPERTY DAMAGES, OR MY FAMILY HEIRS, OR 

ASSIGNS WHICH MAY OCCUR FROM MY OPERATION 

OR OWNERSHIP OF THE MOTORCYCLE I AM 

PURCHASING FROM BROWARD MOTORSPORTS 

WHICH MAY BE DUE OR IN PART TO HAVE BEEN 

CAUSED BY THE NEGLIGENCE OR GROSS 

NEGLIGENCE OF BROWARD MOTORSPORTS, ITS 

AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, OR 

SUBSEQUENT CORPORATE ENTITIES. THIS 

INCLUDES BOTH ACTIVE AND PASSIVE NEGLIGENCE, 

AS WELL AS ANY LIABILITY FOR NEGLIGENT FAILURE 

TO ADEQUATELY WARN WHICH I MIGHT OTHERWISE 

HAVE AS A CAUSE OF ACTION OR LAWSUIT AGAINST 

BROWARD MOTORSPORTS. FINALLY, I HEREBY 

UNDERSTAND IN MY OWNERSHIP AND OPERATION OF 

THE MOTORCYCLE THAT I EXPRESSLY ASSUME THE 

RISK OF ANY DANGER OR RISK OF INJURY OR DEATH 

WHICH MAY BE ASSOCIATED WITH THE OPERATION 

OF THE MOTORCYCLE ON STREETS, ROADS, 

HIGHWAYS, EXPRESSWAYS, OR ANY OTHER PUBLIC 

OR PRIVATE ROADS.

B. INDEMNIFY AND HOLD HARMLESS BROWARD 

MOTORSPORTS FROM ANY AND ALL SUCH CLAIMS OR 

CAUSES OF ACTION BY WHOMEVER MADE AND 

WHEREVER PRESENTED.

4. I AM AWARE THAT THIS IS A RELEASE OF LIABILITY 

AND A CONTRACT BETWEEN MYSELF AND BROWARD 

MOTORSPORTS AND SIGN IT OF MY OWN FREE WILL.

Shortly after receiving the motorcycle, Plaintiff was involved in an 

accident and sustained serious bodily injuries. According to Plaintiff, the 

front end of the motorcycle began to wobble, thrash, and violently turn as 
3

he was operating it, causing him to lose control of the motorcycle and 

crash into a motor vehicle. Plaintiff thereafter sued Defendant for its own 

negligence in assembling, setting up, servicing, repairing, and/or

inspecting the motorcycle. Plaintiff also sued Defendant in its capacity as 

a seller in the stream of commerce for strict products liability and negligent 

products liability arising out of manufacturing defects, design defects, and 

the failure to warn of those defects. Specifically, the complaint included 

three strict products liability counts (counts II, III, and IV) and three 

negligent products liability counts (counts V, VI, and VII). Plaintiff did not 

add Suzuki, the motorcycle’s manufacturer, as a defendant. Defendant 

moved to dismiss the complaint based on the exculpatory clause. Plaintiff 

filed a response opposing dismissal and raised therein much of the same 

arguments now advanced on appeal. Following a hearing, the trial court 

granted Defendant’s motion and dismissed Plaintiff’s entire lawsuit with 

prejudice based on the exculpatory clause.

On appeal, Plaintiff argues the trial court erred by dismissing the strict 

products liability counts because the exculpatory clause, by its plain 

language, only applies to negligence-based claims. Defendant, citing to 

the “any liability or responsibility in any way” language in paragraph 3.A 

of the exculpatory clause, counters the use of the all-encompassing words 

“any” and “in any way” clearly reflect the parties’ agreement to relieve 

Defendant of liability for any potential tort claim, including claims for strict 

products liability.

“An exculpatory clause purports to deny an injured party the right to 

recover damages from the person negligently causing his injury.” Elalouf 

v. Sch. Bd. of Broward Cnty., 311 So. 3d 863, 865 (Fla. 4th DCA 2021)

(citation omitted). “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.” Sanislo v. Give Kids 

the World, Inc., 157 So. 3d 256, 260 (Fla. 2015). “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 know 

what he or she is contracting away.” Id. at 260–61. To determine whether 

such intention was made clear and unequivocal, courts are required to 

read the release in pari materia, giving meaning to each provision.

Fresnedo v. Porky’s Gym III, Inc., 271 So. 3d 1185, 1186 (Fla. 3d DCA 

2019).
4

Here, although the first sentence of paragraph 3.A. states Plaintiff is 

agreeing to release Defendant for “any liability or responsibility in any way 

for personal injury or death,” the second half of the sentence contains 

language limiting the scope of the release to claims “which may be due or 

in part to have been caused by the negligence or gross negligence of 

Broward Motorsports.” Thus, by their own choice of language, the parties 

agreed the exculpatory clause would only release claims sounding in 

negligence. Compare Sanislo, 157 So. 3d at 259, 271 (because the 

exculpatory clause included broad and all-encompassing language 

releasing “any and all claims,” the clause was not per se ineffective to bar

a negligence action despite the absence of the terms “negligence” or 

“negligent acts”), with Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 

(Minn. 1982) (because the exculpatory clause expressly referred to claims 

of negligence, the clause was limited to claims of negligence only). See also

11 Williston on Contracts § 32:10 (4th ed.) (recognizing “specific words will 

limit the meaning of general words if it appears from the whole agreement 

that the parties’ purpose was directed solely toward the matter to which 

the specific words or clause relate,” and that therefore “it is an accepted 

principle that general words in a release are limited always to that thing 

or those things which were specially in the contemplation of the parties at 

the time when the release was given”).

Accordingly, the exculpatory clause in this case undoubtedly applies to 

the ordinary negligence count (count I) and the negligent products liability 

counts (counts V, VI, and VII). The clause, however, does not apply to the 

three strict products liability counts because those counts arguably do not 

fall within the umbrella of a negligence claim. As recognized by this Court, 

“Florida tort law provides that the manufacturer of a defective product may 

be subject to liability under two theories: negligence and strict liability.” 

Grieco v. Daiho Sangyo, Inc., 344 So. 3d 11, 17 (Fla. 4th DCA 2022) 

(citation omitted). This is because “[s]trict liability theories are generally 

distinct from negligence” in that “[s]trict liability is not concerned with the 

reasonableness of a manufacturer’s conduct[;] . . . [instead] the focus is on 

the product itself and the reasonable expectations of the consumer.” Id.

at 18 (third alteration in original) (citation omitted). Thus, while a strict 

liability claim is “to some extent a hybrid of traditional strict liability and 

negligence doctrine,” it is nonetheless a claim separate and apart from a 

negligence claim. Ferayorni v. Hyundai Motor Co., 711 So. 2d 1167, 1169, 

1172 (Fla. 4th DCA 1998) (citation omitted) (“[W]e clarify that under 

Florida law, negligent failure to warn and strict liability failure to warn 

represent two distinct theories of recovery.”); see also Fuchsgruber v. 

Custom Accessories, Inc., 628 N.W.2d 833, 836 (Wis. 2001) (“Strict liability 

for injuries caused by defective and unreasonably dangerous products 
5

. . . is liability in tort, not liability for negligence.”); Hopfer v. Neenah 

Foundry Co., 477 S.W.3d 116, 118 (Mo. Ct. App. 2015) (“Missouri 

jurisprudence embraces a clear demarcation between claims of negligence 

and strict product liability that differentiates the evidence required to 

prove such claims.”).

Moreover, to the extent the exculpatory clause does apply to the strict 

products liability claims, we conclude that portion of the clause 

contravenes public policy. “Even waivers that are clear and unambiguous 

may nevertheless be unenforceable if they contravene Florida public 

policy.” Merlien v. JM Fam. Enters., Inc., 301 So. 3d 1, 6 (Fla. 4th DCA 

2020). A contract is void as against public policy if “it is injurious to the 

interests of the public or contravenes some established interest of society.” 

Id. (quoting Griffin v. ARX Holding Corp., 208 So. 3d 164, 170 (Fla. 2d DCA 

2016)). “The public policy of a state or nation should be determined by its 

Constitution, laws, and judicial decisions.” Griffin, 208 So. 3d at 170 

(quoting Atl. Coast Line R.R. Co. v. Beazley, 45 So. 761, 786 (Fla. 1907)).

In West v. Caterpillar Tractor Co., 336 So. 2d 80, 87 (Fla. 1976), 

the Florida Supreme Court recognized strict products liability as a cause 

of action and adopted the theory of strict liability as set forth in the 

Restatement (Second) of Torts § 402A. Section 402A reads as follows:

(1) One who sells any product in a defective condition 

unreasonably dangerous to the user or consumer or to his 

property is subject to liability for physical harm thereby 

caused to the ultimate user or consumer, or to his property, 

if

(a) the seller is engaged in the business of selling such a 

product, and

(b) it is expected to and does reach the user or consumer 

without substantial change in the condition in which it is 

sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the 

preparation and sale of his product, and

(b) the user or consumer has not bought the product from 

or entered into any contractual relation with the seller.
6

In articulating the policy reasons for the importance of strict liability, 

the West court explained: 

The cost of injuries or damages, either to persons or property, 

resulting from defective products, should be borne by the 

makers of the products who put them into the channels of 

trade, rather than by the injured or damaged persons who are 

ordinarily powerless to protect themselves. We therefore hold 

that a manufacturer is strictly liable in tort when an article he 

places on the market, knowing that it is to be used without 

inspection for defects, proves to have a defect that causes 

injury to a human being.

336 So. 2d at 92.

Thus, “[b]y adopting Section 402A, the court implicitly recognized that 

as a matter of public policy, rather than of contractual understanding, a 

duty should be placed on manufacturers to ‘warrant’ the safety of their 

products.” Fla. Steel Corp. v. Whiting Corp., 677 F. Supp. 1140, 1144 (M.D. 

Fla. 1988); see also West, 336 So. 2d at 88–89 (citing Caruth v. Mariani, 

463 P.2d 83 (Ariz. Ct. App. 1970), for the proposition that “[s]trict tort 

liability is based on public policy,” and holding “[t]he public policy which 

protects the user and the consumer of a manufactured article should also 

protect the innocent bystander”); Porter v. Rosenberg, 650 So. 2d 79, 81 

(Fla. 4th DCA 1995) (“The fundamental purpose underlying the doctrine of 

strict products liability is to further public safety in the use of consumer 

goods, by imposing liability without fault upon entities that have the ability 

to adequately compensate the injured party, distribute the risk of loss, and 

deter further production of defective products.”). Moreover, while the West 

decision dealt with the issue of a manufacturer’s liability, “[s]ince West,

Florida courts have expanded the doctrine of strict liability to others in the 

distributive chain including retailers, wholesalers, and distributors.” 

Samuel Friedland Fam. Enters. v. Amoroso, 630 So. 2d 1067, 1068 (Fla. 

1994). The West decision and its progeny therefore reflect a clear public 

policy to protect consumers from injuries caused by unreasonably 

dangerous products placed on the market by manufacturers and retailers.

No Florida decision directly addresses the issue of whether an 

exculpatory clause between a retailer and a consumer purporting to 

insulate the retailer from strict liability in tort for personal injuries

contravenes public policy. However, the holding in Loewe v. Seagate 

Homes, Inc., 987 So. 2d 758 (Fla. 5th DCA 2008), which considered 

whether an exculpatory clause that purported to release a contractor from 
7

liability for failure to comply with building codes was against public policy, 

is instructive.

The plaintiffs in Loewe entered into a purchase agreement with the 

defendant for the construction and purchase of a new house. Id. at 759. 

The agreement contained an exculpatory clause purporting to release the 

defendant from liability for any personal injury caused by the defendant’s 

construction practices, regardless of whether the injury resulted from the 

defendant’s negligence, gross negligence, or intentional conduct. Id. at 

760. Less than a week after the plaintiffs moved into the house, a door 

allegedly fell off its track and struck one of the plaintiffs in the eye, causing 

injuries. Id. at 759. The plaintiffs thereafter filed a negligence action 

against the defendant. Id. The trial court ultimately dismissed the action 

on the basis that the plaintiffs’ claim was barred by the exculpatory clause. 

Id. at 759–60. On appeal, the Fifth District held “the exculpatory clause 

is obviously unenforceable to the extent that it attempts to release [the 

defendant] of liability for an intentional tort.” Id. at 760. The court also 

held the exculpatory clause contravened public policy to the extent it 

attempted to contract away the defendant’s responsibility to comply with 

building codes, noting the “complaint was dismissed prior to a 

determination of whether [the defendant’s] alleged negligence also 

constituted a building code violation.” Id. (“[A] party may not contract 

away its responsibility to comply with a building code when the person 

with whom the contract is made is one of those whom the code is designed 

to protect.”). In explaining its decision, the court noted that “Florida’s 

comprehensive regulation of the licensing of building contractors and 

building construction standards reflect a clear public policy to protect 

purchasers of residential homes from personal injuries caused by 

improper construction practices.” Id. (footnotes omitted). Therefore, 

“[t]o permit builders of residential homes to absolve themselves from 

liability for personal injury caused by their negligent acts would 

undermine the Legislature’s intent to protect the public from unsafe 

construction practices.” Id. at 761.

Here, much like the public policy behind Florida’s regulation of the 

licensing of building contractors and building construction standards, the 

public policy behind adopting the theory of strict liability is rooted in the 

idea of protecting the safety of consumers. It follows logically, then, that 

an exculpatory clause purporting to absolve a retailer of liability from strict 

liability in tort for injuries caused by defects in products it places on the 

market likewise violates public policy. See Fla. Steel Corp., 677 F. Supp. 

at 1144 (“Although Florida courts have not spoken on the subject, this 

Court finds that the state’s highest court would refuse to enforce 

contractual disclaimers in strict tort liability actions—regardless of the 
8

parties’ relative bargaining power.”); see also Restatement (Second) of 

Contracts § 195, cmt. c. (referencing Restatement (Second) of Torts § 402A, 

and stating: “In general, a term exempting the seller from this liability is 

unenforceable on grounds of public policy.”).

Other jurisdictions’ decisions support this conclusion. See Boles v. Sun 

Ergoline, Inc., 223 P.3d 724, 727–28 (Colo. 2010) (“It is enough here that 

an agreement releasing a manufacturer from strict products liability for 

personal injury, in exchange for nothing more than an individual 

consumer’s right to have or use the product, necessarily violates the public 

policy of this jurisdiction and is void.”); Chi. Steel Rule & Die Fabricators 

Co. v. ADT Sec. Sys., Inc., 763 N.E.2d 839, 842 (Ill. App. Ct. 2002) (“Illinois 

courts have held that contractual provisions precluding consumers from 

bringing strict liability claims for personal injuries violate public policy.”); 

Westyle v. Look Sports, Inc., 22 Cal. Rptr. 2d 781, 800 (Cal. Ct. App. 1993) 

(“We conclude that, as a matter of public policy, product suppliers cannot 

insulate themselves from strict liability in tort for injuries caused by 

defects in products they place on the market by obtaining a consumer’s 

signature on an express assumption of risk.”); see also McGraw-Edison Co. 

v. Ne. Rural Elec. Membership Corp., 678 N.E.2d 1120, 1125 (Ind. 1997) 

(disclaimer of strict liability held invalid under Indiana products liability 

statute); Elite Pros., Inc. v. Carrier Corp., 827 P.2d 1195, 1200–01 (Kan. Ct. 

App. 1992) (noting that Kansas has adopted the doctrine of strict liability 

as set out in the Restatement (Second) of Torts § 402A, and concluding 

“there is no basis for a determination that as a matter of law the printed 

warranty and disclaimer operates to preclude recovery . . . on the theory 

of strict liability in tort”). But see Keystone Aeronautics Corp. v. R.J. 

Enstrom Corp., 499 F.2d 146, 149 (3d Cir. 1974) (“We conclude . . . that 

Pennsylvania law does permit a freely negotiated and clearly expressed 

waiver of § 402A between business entities of relatively equal bargaining 

strength.”); McDermott, Inc. v. Clyde Iron, 979 F.2d 1068, 1076 (5th Cir. 

1992) (applying New York law and concluding strict liability can be waived 

between two sophisticated commercial entities), reversed in part on other 

grounds by McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994).

Defendant nonetheless seemingly suggests that because Plaintiff still 

has the option of suing Suzuki, the motorcycle’s manufacturer, the 

exculpatory clause does not violate public policy. This argument is 

unavailing. As explained by the Florida Supreme Court, “[t]he underlying 

basis for the doctrine of strict liability is that those entities within a 

product’s distributive chain ‘who profit from the sale or distribution of [the 

product] to the public, rather than an innocent person injured by it, should 

bear the financial burden of even an undetectable product defect.’” 

Amoroso, 630 So. 2d at 1068 (alteration in original) (quoting N. Mia. Gen. 
9

Hosp., Inc. v. Goldberg, 520 So. 2d 650, 651 (Fla. 3d DCA 1988)). As the 

retailer Defendant is within the subject motorcycle’s distributive chain, it 

cannot insulate itself from strict liability in tort merely because Plaintiff 

has other potential remedies available.

For the foregoing reasons, we reverse the portion of the order dismissing 

the three strict products liability counts and remand for further 

proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

GROSS and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.