DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ETHAN ELALOUF,

Appellant,

v.

SCHOOL BOARD OF BROWARD COUNTY, 

a political subdivision of the State of Florida,

Appellee.

No. 4D19-3272 

[January 6, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE17-

022265 (13).

Donna Greenspan Solomon of Solomon Appeals, Mediation &

Arbitration, Fort Lauderdale, for appellant.

Michael T. Burke of Johnson, Anselmo, Murdoch, Burke, Piper & 

Hochman, P.A., Fort Lauderdale, for appellee.

Leonard E. Ireland Jr. of Clayton-Johnston, P.A., Gainesville, for 

Amicus Curiae FHSAA. 

LEVINE, C.J.

Appellant, a high school athlete, appeals a final judgment in favor of 

the School Board of Broward County (“school board”) finding that an 

executed pre-game release barred his claim of negligence against the 

school board. Appellant now contends that the release is ambiguous and 

unenforceable and that, for public policy reasons, it should be treated no 

differently than a pre-injury release for commercial establishments. We 

affirm and find that appellant did not preserve below the claims he now

argues. Further, even if appellant had preserved his claims, his arguments 

are without merit.

Appellant played on his high school varsity soccer team. During a 

varsity soccer game, another player hit appellant while he attempted a shot 
2

on goal. The force of the hit threw appellant into an unpadded cement 

barrier near the soccer field.

Prior to playing in the varsity soccer game, appellant and his father 

voluntarily signed a “Consent and Release from Liability Certificate” 

allowing appellant to play soccer for his high school. In the student 

acknowledgment section of the release, appellant agreed to “release and 

hold harmless [the school board] of any and all responsibility and liability 

for any injury or claim resulting from such athletic participation. . . .” The 

parental consent section of the release contained the same language. The 

release also included a section in large bold font stating the following: 

EVEN IF . . . THE SCHOOL DISTRICT . . . USES REASONABLE 

CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE 

YOUR CHILD MAY BE SERIOUSLY INJURED . . . BY 

PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE 

CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH 

CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS 

FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND 

YOUR RIGHT TO RECOVER FROM . . . THE SCHOOL 

DISTRICT . . . IN A LAWSUIT FOR ANY PERSONAL INJURY . 

. . THAT RESULTS FROM THE RISKS THAT ARE A NATURAL 

PART OF THE ACTIVITY. . . . 

Appellant sued for negligence, claiming the school board should have 

covered the cement barrier and not had the barrier close to the field. The 

school board moved for summary judgment, arguing the release barred 

appellant’s action under Krathen v. School Board of Monroe County, 972 

So. 2d 887 (Fla. 3d DCA 2007). In his response to the school board’s 

motion for summary judgment, appellant argued only that the release 

neither mentioned the word “negligence” nor released the school board 

from its own negligence. Appellant elaborated that leaving a cement 

barrier uncovered near the soccer field was a risk that could not be 

considered a natural part of the activity. The trial court granted summary 

judgment relying on Krathen and entered final judgment for the school 

board. This appeal follows.

Orders entering summary judgment are reviewed de novo. Kokhan v. 

Auto Club Ins. Co. of Fla., 297 So. 3d 570, 575 (Fla. 4th DCA 2020). The 

enforceability of a pre-injury release arising from undisputed facts is 

reviewed de novo. Brooks v. Paul, 219 So. 3d 886, 887 (Fla. 4th DCA 2017).

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

recover damages from the person negligently causing his injury.” Id. 
3

(citation omitted). “Such provisions are deemed to be unambiguous and 

enforceable when the language unequivocally demonstrates a clear and 

understandable intention for the defendant to be relieved from liability 

such that an ordinary and knowledgeable person will know what he or she 

is contracting away.” Pillay v. Pub. Storage, Inc., 284 So. 3d 566, 569 (Fla. 

4th DCA 2019). 

Initially, the school board argues appellant did not preserve his claims 

for appeal. “A litigant seeking to overturn a lower court’s judgment may 

not rely on one line of argument in the trial court and then pursue a 

different line of argument in the appellate courts.” Sanchez v. Miami-Dade 

Cty., 286 So. 3d 191, 195 (Fla. 2019). Absent fundamental error, 

arguments must be preserved. Id. 

Here, appellant did not preserve his claims for appeal. First, appellant 

did not argue below any public policy reasons for not treating the release 

differently than a pre-injury release for a commercial business. Second, 

and more importantly, appellant did not argue below that the language in 

the release was ambiguous or caused him confusion. Rather, appellant 

merely argued that the release did not include the word “negligence” and 

thus nothing in the release operated to excuse the school board’s own 

negligence. The entire tenor of appellant’s response in opposition to the 

school board’s motion for summary judgment centered on the absence of 

the word “negligence.”1 

We find no fundamental error because the trial court did not commit 

error that went to the heart of the judicial process. See Fleischer v. 

Fleischer, 586 So. 2d 1253, 1254 (Fla. 4th DCA 1991). In this case, 

appellant pursued one line of argument below, and then pursued a 

different line of argument on appeal. Sanchez, 286 So. 3d at 195.

1 The dissent relies on language in the response wherein appellant stated that 

“the release was neither clear and unequivocal nor was there any mention of the 

School Board, their agents and/or employee’s own negligence or that their agents 

and/or employees’ negligence being excluded.” Although the quote uses the 

phrase “clear and unequivocal,” the clear and unequivocal language was referring 

to the absence of any mention of negligence. In other words, appellant argued 

that the release was not clear and unequivocal because of the omission of the 

word negligence. Indeed, the sentence immediately preceding the language 

quoted by the dissent stated that “‘the intent to relieve a party from responsibility 

for its own negligence must be clearly expressed in a release . . .’ and ‘appellee’s 

negligence must be specifically mentioned.’” 
4

Further, even if appellant had preserved his claims for appeal, the 

release is unambiguous and enforceable. On this point, Krathen is 

instructive. In Krathen, a high school cheerleader sustained injuries 

during a practice at her school’s gymnasium. 972 So. 2d at 888. The 

cheerleader alleged the school board was negligent in failing to place 

protective mats on the floor during practice. Id. Prior to the incident, the 

cheerleader signed a “Consent and Release from Liability Certificate,” 

releasing the school board from liability for “any injury or claim resulting 

from . . . athletic participation.” Id. The Third District determined the 

language in the release “clearly and unambiguously” released the school 

board from liability for negligence claims. Id. 

In this case, the release signed by appellant was a “Consent and Release 

from Liability Certificate” that released the school board from liability for 

“any injury or claim resulting from . . . athletic participation.” Like in 

Krathen, this language “clearly and unambiguously” released the school 

board from liability for negligence claims. Because appellant suffered 

injuries resulting from athletic participation, the school board would be 

held harmless from liability. Accordingly, the trial court did not err in 

granting summary judgment in favor of the school board.2 

Appellant cites to cases finding an exculpatory clause ambiguous when 

qualifying provisions in the release created confusion as to what claims 

were being released. Brooks, 219 So. 3d at 887 (invalidating an 

exculpatory clause when disclaimer was qualified by a statement that the 

surgeon would “do the very best to take care of [the patient] according to 

community medical standards”); Murphy v. Young Men’s Christian Ass’n of 

Lake Wales, Inc., 974 So. 2d 565, 566-68 (Fla. 2d DCA 2008) (finding 

ambiguity when the exculpatory clause excluded “any claims based on 

negligence” but also provided that YMCA would take “every reasonable 

precaution” and concluding that a reasonable reader might be led to 

believe that the waiver of liability extended only to claims for injuries that 

were unavoidable). 

2 The school board argued below that the release signed by appellant was the 

exact same release in Krathen. Although Krathen does not replicate the entire 

release in that case, the essence of both releases holds the school board harmless 

for any injury or claim resulting from athletic participation. The dissent argues 

that the release in this case contains additional language that the release in 

Krathen did not, but the record on appeal does not contain the release in Krathen. 

Where a document is not part of the record, it will not be considered by the 

appellate court. See Hughes v. Enter. Leasing Co., 831 So. 2d 1240, 1241 (Fla. 

1st DCA 2002). 
5

Brooks and Murphy determined the qualifying language created 

confusion because the entity seeking to be released from liability agreed to 

exercise reasonable care in providing the activity despite the release’s 

broad disclaimer of liability. Unlike Brooks and Murphy, the qualifying 

statements here clearly warn that serious injuries can occur even if 

reasonable precautions are taken. 

In Merlien v. JM Family Enterprises, Inc., 301 So. 3d 1 (Fla. 4th DCA 

2020), this court found clear and unambiguous a disclaimer that 

specifically released all rights to make a claim and that did not suggest the 

company would take responsibility for the releasor’s safety. Like the 

release in Merlien, the disclaimer here releases the school board from 

liability for all claims arising from athletic participation. The wording of 

the release unequivocally demonstrates a clear and understandable 

intention for the school board to be relieved from liability. 

The fact that the language releasing the school board from “any injury 

or claim resulting from . . . athletic participation” was a smaller font size 

than the portion of the release addressing inherent dangers does not 

somehow change its meaning or render the release unclear or ambiguous. 

“[O]ne who signs a contract is presumed to know its contents . . . .” All 

Fla. Sur. Co. v. Coker, 88 So. 2d 508, 511 (Fla. 1956). In interpreting a 

contract, a court must give effect to all its terms. Belen Sch., Inc. v. 

Higgins, 462 So. 2d 1151, 1153 (Fla. 4th DCA 1984). This is not a case 

where terms were “hidden in a maze of fine print.” Bellsouth Mobility LLC 

v. Christopher, 819 So. 2d 171, 173 (Fla. 4th DCA 2002). The entire release 

encompassed less than a single page. 

Appellant lastly now argues on appeal that the trial court erred in 

entering summary judgment when no policy reason was shown to treat the 

release any differently from a commercial pre-injury release, which is 

unenforceable when executed by a parent on behalf of a minor. In support, 

appellant relies on Kirton v. Fields, 997 So. 2d 349 (Fla. 2008). Even if this

issue was preserved, Kirton is inapposite.

In Kirton, the court held that a “pre-injury release executed by a parent 

on behalf of a minor child is unenforceable . . . in a tort action arising from 

injuries resulting from participation in a commercial activity.” Id. at 358. 

The court specifically did not extend this holding to a pre-injury release 

involving a non-commercial activity provider. Id. at 350 n.2. Accordingly, 

the public policy reasons in Kirton would not apply in the case of a noncommercial activity provider like the school board.
6

In summary, we affirm and find that appellant did not preserve his 

claims below. Even if appellant had preserved his claims, the release 

signed by appellant is unambiguous and enforceable.

Affirmed. 

ARTAU, J., concurs. 

WARNER, J., dissents with opinion. 

WARNER, J., dissenting.

I dissent for two reasons. First, the trial court erred as a matter of law 

in relying on an assertion by appellee’s counsel as fact in the summary 

judgment hearing that the release in this case was the same as the release 

in Krathen v. School Board of Monroe County, 972 So. 2d 887 (Fla. 3d DCA 

2007).

Second, I conclude that the release did not clearly and specifically 

release the appellee for the negligence which occurred in this case. Unlike 

the majority, I find that this argument was preserved. Therefore, I would 

also reverse on the merits.

Appellant was injured while playing in a soccer match at Piper High 

School, part of the Broward County School District. During the game, 

appellant was tackled by a defensive player. The hit sent appellant sliding

headfirst on the grass. He slid out of the field of play and hit a cement 

block just a few feet outside of the lines of the field, severely injuring his 

hand and wrist. The cement barrier was part of a high jump pit or shot 

put pit, situated very close to the soccer field lines. The block was not 

padded in any way.

Appellant and his father filed suit against the School Board alleging 

negligence in leaving an unpadded concrete block so close to the soccer 

field that it posed a danger to the players. The School Board moved for 

summary judgment based upon a release signed by the appellant and his 

father. In very small print, the release stated that the participant 

acknowledged the risks of athletic participation and accepted 

responsibility for his own welfare “with full understanding of the risks 

involved.” His father signed that part of the release, in which he also 

agreed to release the school “of any and all responsibility and liability for 

any injury or claim resulting from such athletic participation, and agreed 

to take no legal action against the FHSAA because of any accident or 
7

mishap involving the athletic participation of my child.” The release then 

includes the following in large type, bolded and capitalized language:

READ THIS FORM COMPLETELY AND CAREFULLY. YOU 

ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A 

POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING 

THAT, EVEN IF MY CHILD’S/WARD’S SCHOOL, THE 

SCHOOLS AGAINST WHICH IT COMPETES, THE SCHOOL 

DISTRICT, THE CONTEST OFFICIALS AND FHSAA USES

REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE 

IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED 

OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE 

THERE ARE CERTAIN DANGERS INHERENT IN THE 

ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. 

BY SIGNING THIS FORM YOU ARE GIVING UP YOUR 

CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM MY 

CHILD’S/WARD’S SCHOOL, THE SCHOOLS AGAINST 

WHICH IT COMPETES, THE SCHOOL DISTRICT, THE 

CONTEST OFFICIALS AND FHSAA IN A LAWSUIT FOR ANY 

PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD 

OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE 

RISKS THAT ARE A NATURAL PART OF THE ACTIVITY.

Thus, the capitalized language in large type stresses that there are dangers 

inherent in the activity which cannot be avoided and are a natural part of 

the activity.

Appellant filed a response to the motion arguing that the release did 

not release the appellee from its own negligence unless the instrument 

clearly and specifically provides for a limitation of liability for negligence. 

He noted that the release specified that it applied to “risks that are a 

natural part of the activity,” and he argued that leaving an unpadded 

cement pit close to the field of play was not a natural part of the activity of 

soccer. Most of his response centered around inapplicable and 

disapproved case law that held that a release must include “negligence” 

within its terms to be effective to release a party from its own negligence.3 

However, he did add:

3 He cited to Witt v. Dolphin Research Center, Inc., 582 So. 2d 27 (Fla. 3d DCA 

1991). Witt cites to Van Tuyn v. Zurich American Ins. Co., 447 So. 2d 318 (Fla. 

4th DCA 1984), which is also cited in appellant’s response. Van Tuyn in turn 

was disapproved of by the supreme court in Sanislo v. Give Kids the World, Inc., 

157 So. 3d 256 (Fla. 2015). In Sanislo, the court held that “the absence of the 
8

In our case the release was neither clear and unequivocal nor 

was there any mention of the School Board, their agents 

and/or employee’s own negligence or that their agents and/or 

employees’ negligence being excluded. The writing in parts of 

the Release signed by [appellants] is so tiny, it is barely legible. 

Any ambiguities in a contract which releases a party from 

liability is strictly construed against the release.

At the summary judgment hearing, appellee relied solely on Krathen, 

contending that it was directly on point and involved the same release as 

in this case. The court questioned appellee’s attorney on this point, and 

the attorney told the court that the release was the same FHSAA release. 

Appellant’s attorney questioned that assertion, noting there was nothing 

in the opinion itself to show that it was the same. Stating that it was going 

on counsel’s word that this was the same release, the court then granted 

the motion based upon Krathen.

As noted in the majority opinion, when considering “the enforceability 

of [a] pre-injury release [] arising from undisputed facts, the standard of 

review is de novo.” Brooks v. Paul, 219 So. 3d 886, 887 (Fla. 4th DCA 

2017) (citation omitted). While the facts of this incident and the contents 

of this release clause are undisputed, it was disputed at the hearing that 

the release in the Krathen case was identical to the release in this case.

“Trial judges cannot rely upon [counsel’s] unsworn statements as the 

basis for making factual determinations[.] Olson v. Olson, 260 So. 3d 367, 

369 (Fla. 4th DCA 2018) (quoting Smith v. Smith, 64 So. 3d 169, 171 (Fla. 

4th DCA 2011)). An attorney’s statements are not evidence. Olson, 260 

So. 3d at 369. The amicus brief of the Florida High School Athletic 

Association (FHSAA) informs us that the additional bolded and capitalized 

language quoted in the majority opinion was not in the Krathen case. For 

such a significant disputed fact, the trial court should have denied the 

motion. Nevertheless, for the purpose of my dissent, I accept the FHSAA 

statement that the capitalized language above was not included in the 

Krathen release.

I would find that appellant did preserve the argument raised on appeal 

by arguing that the agreement was not clear and unequivocal. Appellant 

argued that it did not clearly and specifically release negligence, and he 

referred to that portion of the release which refers to risks that are a 

terms ‘negligence’ or ‘negligent acts’ in an exculpatory clause does not render the 

agreement per se ineffective to bar a negligence action.” Id. at 271.
9

natural part of the activity. He noted that the danger of a concrete barrier 

so close to the field of play is not a natural part of the activity or an 

inherent risk of participation in the sport. The brief likewise argues that 

the language of the release does not clearly include the release of 

negligence for risks not inherent in the sport. Because our review of 

summary judgments is de novo, I would hold that the argument made in 

appellant’s response to the motion for summary judgment preserved this 

issue for appeal.

The majority opinion properly relies on the statement in Brooks v. Paul, 

219 So. 3d 886 (Fla. 4th DCA 2017), as the rule of law to be applied to 

releases containing exculpatory clauses, as this one does. Brooks states:

“An exculpatory clause purports to deny an injured party the 

right to recover damages from the person negligently causing 

his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen, 

LLP, 832 So. 2d 270, 272 (Fla. 4th DCA 2002) (quoting 

O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446 (Fla. 

5th DCA 1982)). “Exculpatory clauses are disfavored in the 

law 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.” Loewe v. Seagate Homes, 

Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008). Further, such 

clauses “will be strictly construed against the party claiming 

to be relieved of liability.” Murphy v. Young Men’s Christian 

Ass’n of Lake Wales, Inc., 974 So. 2d 565, 567–68 (Fla. 2d 

DCA 2008). “ ‘Such clauses are enforceable only where and 

to the extent that the intention to be relieved was made clear 

and unequivocal in the contract, and the wording must be so 

clear and understandable that an ordinary and knowledgeable 

party will know what he is contracting away.’ ” Id. at 568 

(quoting Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 

So. 2d 628, 634 (Fla. 1st DCA 1991)).

Brooks, 219 So. 2d at 887–88.4 In Brooks, we considered an exculpatory 

release signed by a patient for her doctor’s treatment. In it, the patient 

4 Appellant did not cite to Brooks in his memorandum to the trial court, although 

he did cite to O’Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 

1982), which is cited in Brooks. There is nothing wrong with citing to older case 

law. Sometimes it provides the best support for a position. But it is always 

helpful to the court, both trial and appellate, when those cases are brought up to 
10

agreed not to sue the doctor because “I realize that Dr. Michael D. Paul 

and his staff will do the very best to take care of me according to 

community medical standards.” Id. at 887. This statement was in smaller 

type below a statutory notice. The inclusion of the foregoing sentence 

made the release ambiguous, because it could be interpreted as explaining 

that the doctor would not be liable for injuries which occurred without any 

fault on his part, not those in which he was at fault. Id.

Brooks cited to Goyings v. Jack and Ruth Eckerd Foundation, 403 So. 

2d 1144 (Fla. 2d DCA 1981), disapproved on other grounds by Sanislo v. 

Give Kids the World Inc., 157 So. 3d 256 (Fla. 2015). In Goyings, the court 

also found that a release did not clearly and unequivocally absolve the 

releasee from its own negligence. There the release clause provided:

It is further agreed that reasonable precautions will be taken 

by Camp to assure the safety and good health of said boy/girl 

but that Camp is not to be held liable in the event of injury, 

illness or death of said boy/girl, and the undersigned, does 

fully release Camp, and all persons concerned therewith, for 

any such liability.

403 So. 2d at 1145–46. The precatory language that the camp would take 

reasonable care gave the exculpatory clause a different meaning.

By their own choice of language, appellees agreed to take 

reasonable precautions to assure Leigh Anne’s safety. This 

duty to undertake reasonable care expressed in the first part 

of the provision would be rendered meaningless if the 

exculpatory clause absolved appellees from liability. We 

cannot ignore this language because all terms of a contract 

provision must be read as a whole to give every statement 

meaning.

Id. at 1146. The court held that the language was not clear and 

unequivocal, nor explicit. Id. Therefore, it did not preclude the negligence 

claim against the appellee. Id.

Brooks and Goyings were distinguished by this court in Merlien v. JM 

Family Enterprises, Inc., 301 So. 3d 1, 5 (Fla. 4th DCA 2020). In both 

cases, the Merlien court noted that “additional language” in the releases 

created the ambiguity. In Brooks, the disclaimer was “qualified” by the 

date with citations to more current case law, particularly out of the appellate 

court in whose district the trial court presides.
11

additional language, rendering it ambiguous. Id. In Goyings, it was also 

qualified by language indicating that the camp would take reasonable 

precautions to assure the safety of campers. Id. In Merlien, the release 

contained no qualifications to the disclaimer. Id.

This case is more like Brooks and Goyings. The release states that the 

participant and his parents are agreeing not to sue for any mishap with 

full understanding of the risks involved in athletic competition. But that 

part is in tiny print. The large print states that the participant and parent 

acknowledge that even with reasonable care, the participant may still be 

injured by participating, because “there are certain dangers inherent in the 

activity which cannot be avoided or eliminated.” It further states that the 

participant and parent are giving up their right to sue the appellee for 

injuries which result “from the risks that are a natural part of the activity.” 

As pointed out both at trial and on appeal, the release is designed to alert 

the parties that there are many dangers inherent in athletic competition, 

and the athlete and his/her parents release the appellee from liability for 

injuries from activities inherent in the competition.

This qualifying language, which by its capitalization and size appears 

far more important than the small print language releasing liability, does 

not clearly absolve appellee from its own negligence, when that negligence 

is not a natural part of the activity and where the danger is not inherent in 

the sport. In this case, appellant was injured when he slammed into a 

concrete barrier only feet from the soccer field. This type of risk is not 

inherent in the sport, nor a natural part of the activity. Being hit by a 

defensive player is and sliding out of bounds might be inherent in the 

sport, but no one anticipates that the area outside the field of play will 

have dangerous traps.

Because of the additional language in this release, Krathen is 

inapposite. The release in Krathen released the school board from “any 

injury or claim resulting from . . . athletic participation.” 972 So. 2d at 

888. It did not include language that the parent was agreeing not to sue 

for injuries resulting from risks which were a natural part of the activity. 

Amicus FHSAA explains that this language was added to the form after the 

2010 amendment to section 744.301(3)(b), Florida Statutes, which 

required this language in any release by a commercial enterprise. Thus, 

it is clear that it was not in the Krathen release, which was executed well 

prior to the amendment of the statute.

The additional language changes the instant release from the Krathen 

release to make it unclear, just as the extra sentences did in Brooks and 

Goyings. A reasonable person would not understand that he was giving 
12

up his right to seek damages for injuries suffered by appellee’s own 

negligence in placing dangerous obstructions outside the field of play 

without providing protection for the players.

I would reverse the summary final judgment and remand this case for 

further proceedings.

* * *

Not final until disposition of timely filed motion for rehearing.