The Cohen v. Five Brooks Stable court (2008 Cal. App. LEXIs 222) gave some sound advice to writers of waivers. While acknowledging that California courts hold releases of liability to a high standard of clarity, the court emphasized that “An effective release is hard to draft only if the party for whom it is prepared desires to hide the ball, which is what the law is designed to prevent. . . . A release that forthrightly makes clear to a person untrained in the law that the releasor gives up any claim against the releasee for the latter’s own negligence . . . ordinarily passes muster.”p.27
Susan Cohen was injured when she fell from her horse during a guided trail ride. She had signed a waiver, but sued alleging negligence on the part of Five Brooks Stable. Cohen alleged that the trail guide changed the gait of his horse, causing Cohen’s horse to suddenly break into a gallop. She fell from the saddle and was dragged with one foot caught in the stirrup.
California law provides for the enforcement of waivers providing the waiver language is clear and unambiguous. The law specifies that language is ambiguous “when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.”p.12 When an ambiguity exists, the language must be construed against the drafter of the document. In the Five Brooks Stable waiver, the inherent risks of the activity were discussed and “some, but not all” were named. Following this was the offending language — “I understand that the [previous] description of these [i.e., inherent] risks is not complete and that other unknown or unanticipated risks may result in injury or death.”p.15 The ambiguity found by the court was that the “other unknown or unanticipated risks” might be interpreted by the stables as including inherent and negligence risks, but might be interpreted by the client as referring only to inherent risks. For this, and other reasons, the waiver was not upheld and failed to protect Five Brooks Stable due to ambiguity.
Preparers of waivers and/or recreation providers who use and rely upon waivers and releases of liability for liability protection must use care in the language of the waivers and be cognizant of waiver law in the state. Remember, waiver law varies from state to state.
By Doyice J. Cotten