IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

THE ESTATE OF NICHOLAS ADAM 

BLAKELY, BY AND THROUGH 

MICHELLE WILSON, AS PERSONAL 

REPRESENTATIVE,

Appellant,

v. Case No. 5D21-2547

LT Case No. 2018-12178-CIDL

STETSON UNIVERSITY, INC.,

Appellee.

________________________________/

Opinion filed December 30, 2022

Appeal from the Circuit Court 

for Volusia County,

Kathryn D. Weston, Judge.

A. Lance Reins, Rainey C. Booth, Jr., 

and Joanna Greber Dettloff, of 

Mendes, Reins & Wilander, PLLC, 

Tampa, and Christopher 

Klemawesch, and Jason M. Melton, 

of Whittel & Melton, LLC, Spring Hill, 

and Romero Pearson, of Pearson 

Law Group, LLC, Lawrenceville, GA, 

for Appellant.
2

Michael R. D'Lugo, and Richard E. 

Ramsey, of Wicker Smith O'Hara 

McCoy & Ford, P.A., Orlando, for 

Appellee.

EVANDER, J.

In this wrongful death case, the Estate of Nicholas Adam Blakely, by 

and through Michelle Wilson, as personal representative (“Wilson”), timely 

appeals a final judgment entered after the trial court granted summary 

judgment for the defendant, Stetson University, Inc. (“Stetson”). The trial 

court found that two identical releases signed by Blakely in order to play 

football for Stetson were sufficiently clear to bar claims brought against 

Stetson arising from Blakely’s cardiac death after participating in a football 

practice. 

On appeal, Wilson raises two issues. First, she contends that the 

language in the releases was insufficient to be enforceable as a matter of 

law. Second, she argues that genuine issues of material fact exist concerning 

the scope of the release and whether Stetson’s alleged tortious conduct fell 

within that scope. We find merit to Wilson’s first argument and, accordingly, 

we reverse the final judgment entered in favor of Stetson. Because we find 

the releases were unenforceable, we find it unnecessary to address Wilson’s 

second argument. 
3

On cross-appeal, Stetson argues that if this Court reverses the final 

judgment, it should also reverse the trial court’s order allowing Wilson to add 

a claim for punitive damages. We find merit to the cross-appeal, and 

accordingly, we reverse that order as well. 

Nicholas Blakely was a student and scholarship football player at 

Stetson in 2016 and 2017, his freshman and sophomore years in college. He 

pulled himself out of an afternoon football practice on August 28, 2017, 

complaining to an assistant athletic trainer that he was feeling dizzy and that 

his chest felt tight. The assistant athletic trainer took Blakely to the sideline, 

took his pulse,

1 gave him water to cool down, removed his helmet, loosened 

his shoulder pads, and had him stand in the shade. Trainers continued to 

monitor Blakely’s symptoms. However, after resting on the sideline for 

approximately forty to forty-five minutes, Blakely collapsed. 

In addition to calling 911, Stetson employees attempted various 

emergency medical procedures in an unsuccessful effort to revive Blakely. 

Blakely was transported to the hospital, where he ultimately died. 

There was record evidence that during an April 2017 practice, Blakely 

had complained to an assistant athletic director of chest pain. He also 

1 The record evidence reflects that when Blakely’s pulse was first 

checked, it was between 160 and 170 beats per minute. Blakely’s pulse rate 

started to decrease shortly thereafter. 
4

advised the trainer that he had experienced one or two incidents of chest 

pain in high school, but both of those incidents had resolved quickly. The 

chest pain incident of April 2017 also resolved in just a few minutes. The 

assistant athletic trainer did not document the April incident or otherwise do 

anything with the information provided by Blakely. Furthermore, when 

Blakely returned to school after summer break, Stetson did not have him 

undergo a physical examination prior to him participating on the football team 

for the upcoming season.

There is also record evidence that on the morning of August 28, 2017, 

the day Blakely died, Blakely advised the head football athletic trainer that 

he was not feeling well, that he had a bad cough, chest congestion, and 

shallow breathing. The trainer took Blakely’s temperature which was 

negative for fever. The trainer believed Blakely had a cold and did not refer 

him to the student health clinic. Blakely was permitted to continue 

participation in the planned activities for the day without restriction.

The operative amended complaint included counts for negligence and 

breach of fiduciary duty. In its answer, Stetson raised as an affirmative 

defense that Blakely had signed two identical releases prior to his 

participation on the football team in 2016 and 2017, which barred the claims 

brought against Stetson. The releases signed by Blakely read as follows:
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STETSON UNIVERSITY DEPARTMENT OF ATHLETICS

Athletic Participation Release of Liability and Waiver of Liability

Please Read Carefully

I am aware that playing or practicing to play/participate in any 

sport can be a dangerous activity involving many risks of injury. 

I understand that the dangers and risks of playing or 

participating/practicing may include, but are not limited to: 

death, serious neck injury, serious spinal cord injury, which may 

result in complete or partial paralysis, brain damage, serious 

injury to virtually all internal organs, serious injury to virtually all 

bones, joints, ligaments, muscles, tendons, and other aspects of 

the muscular-skeletal system, serious injury or eye impairment, 

and serious injury to other aspects of my body, general health 

and well-being. I understand that the dangers and risks of playing 

or participating/practicing in the Stetson University Athletic 

Department programs may result not only In serious injury, but 

in a serious impairment of my future abilities to earn a living, to 

engage in other business, social, and recreational activities, and 

generally to enjoy life. 

Because of the dangers and risks involved in participating 

in intercollegiate athletics, I recognize the importance of 

following the Coaches and Sports Medicine staff 

instructions regarding playing techniques, conditioning, 

rehabilitation/ treatment recommendations and team rules, 

etc., and agree to obey such instructions.

In consideration of Stetson University permitting me to 

play/participate for Stetson University intercollegiate athletics in 

all activities related to the team, including, but not limited to: 

trying out, practicing, playing/participating or team travel in that 

sport, I hereby assume all risks associated with participation 

and agree to hold Stetson University, it's [sic] trustees, 

administration, coaches, athletic trainers and athletic training 

interns from any and all liability, actions, causes of actions, 

debts, claims or demands of any kind or nature which may 
6

arise by or in connection with my participation in any 

activities related to the Stetson University athletic program. 

The terms hereof shall serve as a release and assumption of 

risk for myself, my heirs, estate, executor, administrator, 

assignees and for all members of my family. 

The terms hereof shall serve as a complete release and 

waiver of liability for myself, my heirs, estate, executor, 

administrator assignees, and for all members of my family.

(emphasis added).

In its motion for summary judgment, Stetson argued that the releases 

clearly and unambiguously released Stetson from any and all liability arising 

from Blakely’s participation in Stetson football activities. In response, Wilson 

argued, inter alia, that the releases did not mention negligence and contained 

contradictory and ambiguous provisions rendering the releases 

unenforceable. In granting Stetson’s motion, the trial court found that the 

releases were “clear and understandable so that an ordinary and 

knowledgeable person would know what is being contracted away” and 

“would be clear to even someone who is not an adult that executing them 

would release all claims.”

We review orders granting summary judgment de novo. Volusia Cnty. 

v. Aberdeen at Ormond Beach, L.P., 60 So. 2d 126, 130 (Fla. 2000). Here, 

we are called upon to determine the enforceability of the exculpatory 
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provisions set forth in Stetson’s Athletic Participation Release of Liability and 

Waiver of Liability. 

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

recover damages from a person negligently causing his injury. They 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 the injury and bear the 

risk of loss. Such clauses are strictly construed against the party seeking to 

be relieved of liability. Thus, exculpatory clauses are enforceable only where 

and to the extent that the intention to be relieved from liability is made clear 

and unequivocal. The wording must be so clear and understandable that an 

ordinary and knowledgeable person will know what he is contracting away.” 

UCF Athletics Ass’n, v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) 

(internal citations and quotations omitted), approved in part, quashed in part, 

175 So. 3d 724 (Fla. 2015).

In the present case, the exculpatory clause did not expressly inform 

Blakely that by executing the document at issue, he would be contracting 

away his right to sue Stetson for Stetson’s own negligence. Although this 

omission does not, standing alone, render the exculpatory clause 

unenforceable, see Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 
8

2015), it is a factor for a court to consider in determining whether the 

exculpatory clause is clear and unambiguous. Plancher, 121 So. 2d at 1101, 

1102; see also Sanislo, 157 So. 3d at 271 (“Despite our conclusion [that an 

exculpatory clause can be effective to bar a negligence action despite the 

absence of expressed language referring to the release of the defendant for 

its own negligence], we stress that our holding is not intended to render 

general language in a release of liability per se effective to bar negligence

actions.”).

2

2 In its answer brief, Stetson argues that the Florida Supreme Court’s 

decision in Sanislo renders “meaningless” the absence of the words 

“negligent” or “negligent acts.” We reject this argument. Sanislo was a 4–3 

decision, in which two of the justices in the majority concurred in result only. 

The other two justices in the majority joined in an opinion that concluded that 

the ultimate question in this case was whether the exculpatory clause, when 

considered in its entirety, “clearly conveys that Give Kids the World, Inc.

would be released from any liability, including negligence, for damages, 

losses, and injuries due to transportation, food, lodging, entertainment, and 

photographs.” The supreme court’s decision in Sanislo affirmed this court’s 

position that the failure of an exculpatory clause to express the informed 

designee would not, in and of itself, render the clause unenforceable.

Sanislo, 157 So. 3d at 258.

Contrary to Stetson’s suggestion, the Sanislo decision did not 

expressly or implicitly overrule this court’s determination in Plancher that the 

failure to expressly reference that the defendant was being released for its 

own negligence could operate with other factors to invalidate an exculpatory 

clause. Furthermore, none of the seven justices suggested a belief that the 

absence of the words “negligent” or “negligent acts” was meaningless. To 

the contrary, the three dissenting justices concluded that the words were 

required, while the two justices in the majority who opined on the issue 
9

In addition, there are at least two provisions which, combined with 

Stetson’s failure to expressly inform Blakely that he was contracting away 

his right to sue Stetson for Stetson’s negligence, render the exculpatory 

provision unclear and ambiguous. First, immediately preceding the 

exculpatory clause, Blakely was advised that it was important that he comply 

with Stetson’s medical staff’s instructions regarding, inter alia, conditioning 

and treatment and, indeed, was required to obey such instructions. As was 

stated in Plancher, this type of language, when coupled with a clause that 

does not expressly state that the athlete would be waiving a negligence 

action, could reasonably lead the athlete to believe that the university “would 

be supervising his training and instructing him properly (non-negligently), 

and that he was only being asked to sign the exculpatory clause to cover 

injuries inherent in the sport.” Plancher, 121 So. 3d at 1102; see also Murphy 

v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So. 2d 565, 568–

69 (Fla. 2d DCA 2008) (holding where waiver expressly releasing YMCA

from any claims based on YMCA’s negligence also included provision 

suggesting that YMCA would take “every reasonable precaution” against 

accidents, waiver was unenforceable because a reasonable reader might be 

agreed “that it may be better practice to expressly refer to ‘negligent’ or 

‘negligent acts’ in an exculpatory clause.” Sanislo, 157 So. 3d at 270.
10

led to believe that waiver of liability only extends to claims for injuries that 

were unavoidable “even when every reasonable precaution” had been taken 

by YMCA; “[C]onfusion results from the juxtaposition of the ‘every 

reasonable precaution’ provision with the provision for the release of ‘any 

claims based on negligence.’”).

Second, the final two sentences of the releases state that the releases 

serve as a release “for myself,” not “by” myself. Specifically, these sentences 

read, in relevant part: “[T]he terms hereof shall serve as a release and 

assumption of risk for myself . . .” and “The terms hereof shall serve as a 

complete release and waiver of liability for myself, . . . .” (emphasis added).

As Wilson observes, the word “for” is defined to mean “used to indicate the 

person or thing that something is sent or given to.” In other words, the use of 

the word “for” can suggest that the terms of the release are for the benefit of 

Blakely, that is, if he follows the instructions of Stetson’s athletic department 

personnel and causes injury to another while participating in the dangerous 

activity of playing football, he is released from liability.

As we have previously observed, exculpatory clauses are to be strictly 

construed against the party seeking to be relieved of liability. Here, Stetson’s 

Athletic Participation Release of Liability and Waiver of Liability form: 1) failed 

to expressly inform Blakely that he was contracting away his right to sue 
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Stetson for Stetson’s own negligence, 2) used language that could 

reasonably lead one to believe that the university would be supervising and 

training properly so that he was only being asked to sign the exculpatory 

clause to cover injuries inherent in a sport, and 3) used language suggesting 

that the terms of the release were for Blakely’s benefit. The combination of 

these factors supports a determination that the exculpatory clause was not 

clear and unambiguous. As a result, we conclude that the exculpatory clause 

relied upon by Stetson is unenforceable and that the trial court erred in 

granting summary judgment in favor of Stetson.

Cross-Appeal

A trial court’s order granting or denying a motion to amend complaint 

to add a claim for punitive damages is reviewed de novo. Est. of Despain v. 

Avante Grp., Inc., 900 So. 2d 637, 644 (Fla. 5th DCA 2005). The appellate 

court views the record evidence and the proffered evidence in the light most 

favorable to the plaintiffs and accepts said evidence as true for the purpose 

of reviewing whether a reasonable basis exists for punitive damages. Id.

A defendant may be held liable for punitive damages only if the trier of 

fact finds that the defendant was guilty of intentional misconduct or gross 

negligence. See § 768.72(2), Fla. Stat. (2017). In the instant case, Wilson 
12

did not allege that Stetson engaged in intentional misconduct but rather

relied solely on allegations of gross negligence. 

Section 768.72(2)(b) defines “gross negligence” as conduct “so 

reckless or wanting in care that it can constitute a conscious disregard or 

indifference to the life, safety, or rights of persons exposed to such conduct.”

Here, Wilson argues that punitive damages are justified because:

(1) [D]espite being directly put on notice of numerous agency 

guidelines and best practices to the contrary – Stetson, through 

its managing agents including its Director of Sports Medicine, 

failed to implement ECG screening of student-athletes based at 

least in part on the cost of implementing such screening, failed 

to implement any emergency action plan or policies and 

procedures regarding Sudden Cardiac Death, and failed to 

provide its athletic trainers and coaches with any specialized 

training dealing with Sudden Cardiac Death. 

(a) . . . Stetson athletic trainers and coaches were made aware 

of [Blakely’s] repeated complaints of chest pain, shortness of 

breath, congestion, dizziness, and an “alarming” elevated heart 

rate that, according to a Stetson Athletic Trainer, should have 

been a red flag when combined with his other symptoms. But, 

due to the lack of policies and procedures, training, and 

emergency action plans at Stetson, the athletic trainers and 

coaches did not treat these textbook signs of cardiac distress as 

a cardiac emergency as they should have, resulting in [Blakely’s]

death. . . . ; 

(2) [Stetson] actively and knowingly participated in the 

company’s practice of declining to implement use of ECG 

screening, specialized training, emergency action plans, and 

policies and procedures in accordance with numerous guidelines 

and best practices to protect student-athletes from the leading 

cause of unexpected deaths in NCAA Athletes and allowing its 

athletic trainers to train athletes in complete ignorance and 
13

disregard of Sudden Cardiac Death while knowing that such a 

practice was grossly negligent; and

(3) . . . Stetson’s officers, directors or managers – including its 

Director of Sports Medicine who was the ultimate decision-maker 

on all matters at issue in this case – knowingly condoned, ratified, 

or consented to the grossly negligent and recklessly indifferent 

conduct by failing to respond in any way to the threat of Sudden 

Cardiac Death despite being put on notice of the life threatening 

issue, the position of various agencies, and related best 

practices.

There is record evidence that supports some of those allegations. 

However, taking the record evidence and proffered evidence in the light most 

favorable to Wilson, we conclude that Wilson has not met the threshold 

necessary to state a claim for punitive damages. The Florida Supreme Court 

has stated that: “[t]he character of negligence necessary to sustain an award 

of punitive damages must be of a ‘gross and flagrant character, evincing

reckless disregard of human life, or of the safety of persons exposed to its 

dangerous effects, or there is that entire want of care which would raise the 

presumption of a conscious indifference to consequences, or which shows

wantonness or recklessness, or a grossly careless disregard of the safety 

and welfare of the public, or that reckless indifference to the rights of others 

which is equivalent to an intentional violation of them.’” Valladares v. Bank 

of Am. Corp., 197 So. 3d 1, 11 (Fla. 2016) (quoting Owens-Corning 

Fiberglass Corp. v. Ballard, 749 So. 2d 43, 46 (Fla. 1999)). Wilson’s evidence 
14

falls short of meeting that standard. Accordingly, we conclude that the trial 

court erred in granting Wilson’s motion to amend complaint to add a claim 

for punitive damages.

REVERSED and REMANDED.

LAMBERT, C.J. and HARRIS, J., concur.