By Doyice Cotten
Scott Storer was injured while riding his motorcycle on a motocross track (Storer v. E Street MX, Inc., 2015 Cal App. Unpub. LEXIS 4029). Prior to beginning his ride, Scott was handed a clipboard and asked to sign his name.
He said the only thing on the clipboard that he could see were names of other riders that signed in. He explained there was one folded sheet of paper with signature lines at the top of the clipboard, and underneath there was another sheet of paper with more signature lines. Storer did not know he was signing a release of liability, did not read the portion of the page above the fold, and did not ask if he was signing anything other than a sign-in sheet. He subsequently acknowledged his signature on numerous track release forms.
Testimony indicated that a waiver is presented on a clipboard with signature lines at the bottom. Storer signed the release on the day of his injury. Among other things, the document purported to release E Street from all liability whether caused by E Street’s negligence or otherwise.
Storer said he did two or three laps and then “kind of blanked out.” When he woke up five weeks later, he could not recall the crash, thinking only that something hit him. There were no witnesses to his injury. He alleged negligence and premises liability.
Allegations Regarding the Waiver
Storer alleged that E Street concealed the release language from him by not revealing that part of the waiver. Concealment of the language in similar cases has been deemed to be fraud on the part of the business. In this case, however, the appellate court concluded that the trial court ruling in favor of the defense was correct. The court held that the Storer claims did not yield any triable issues of fact regarding alleged negligence by E Street. It went on to say that Storer did not meet his burden to show triable issues of material fact regarding the essential elements of his causes of action [negligence].
It was interesting that the court commented that “E Street has an apparent practice of requiring multiple customers to sign a single release page rather than providing each customer with their own release agreement, thereby making it more difficult for any individual customer to negotiate the terms of their individual release agreement.”
Risk Management Take-Away
The first risk management take-away is that individual waivers are safer than group waivers. Here, had there been evidence of negligence on the part of E Street, E Street might well have been charged with fraud. The second take-away – if you use a group waiver with several signatures, it should be administered in such a way that there can be no doubt that the signers were allowed to read the waiver language.
Photo Credit: Thanks to J E Hans for the photo on Flickr.