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The Power of a Liability Waiver

By Doyice J. Cotten

The case used in this post is a California case (Brown v. El Dorado Union High School District, 2022) and applies California waiver law. Laws in many states may differ substantially, but most states have similar laws. This case involves a high school football player who suffered a very serious head injury during a game and the subsequent lawsuit against the school district. The plaintiffs case is harmed by the fact the plaintiff (Nicholas and his father) signed a liability waiver of negligence prior to the season. They allege gross negligence regarding a number of claims.

California, like most states, enforces liability waivers; unlike most states, California courts also enforce parental waivers (waivers signed by parents on behalf a minor child). One of the purposes of this post is to illustrate the power and importance of a well written waiver. Keep in mind throughout that not all waivers are well-written and that waiver laws in other states will differ somewhat from those in California.

What Happened

Nick played most plays in the game. He played quarterback, receiver, running back, and special teams for kickoffs. After a play late in the game, Nick took himself out of the game. He did not appear to take a blow to the head at any point. Further, he looked normal as he came out; did not look unbalanced or uncoordinated. At the end of the game, he collapsed and was examined by the doctor, a chiropractor. They called an ambulance and it was there in 10 minutes.

The Waiver

President Obama once said that elections have consequences. That is true and the same can be said about liability waivers. The waiver, signed by Nick and his father, stated:

“my son … may participate in the school-related activities designated above.” Someone checked the boxes for baseball and football on the release Read and Nick signed.

The release provides that if Nick “is hurt, injured, or even dies, I/we (i.e., the student, his/her parent/s, guardian/s, heir/s …) will not make a claim against or sue the El Dorado Union High School District (hereinafter EDUHSD), its trustees, officers, employees, and agents, or expect them to be responsible or pay for any damages.”

The waiver included the following:

“I, the undersigned, understand and acknowledge that the above-named student has voluntarily chosen to participate in school-related activities at his/her own risk. I/We know and fully understand that said school-related activities may involve numerous risks, dangers, and hazards, both known and unknown, where serious accidents can occur, and where participants can sustain physical injuries, damage to their property, or even die. Regardless of whether the school-related activity involves physical contact or not, any activity may have inherent risks of injury which are inseparable from the activity. I/We acknowledge and willingly assume all risks and hazards of potential injury, paralysis, and death in the school-related activity/ies ….

 

“I/We, the undersigned, understand and acknowledge that school-related activity/ies contain potential risks of harm or injury. Injuries might arise from the student’s actions or inactions, the actions or inactions of another student or participant, or the actual or alleged failure by district employees, agents, or volunteers to adequately coach, train, instruct, or supervise…. Injuries might also arise from undiagnosed, improperly diagnosed, untreated, improperly treated, or untimely treated actual or potential injuries, whether or not caused by the student’s participation.

 

All such risks are deemed to be inherent to the student’s participation in school-related activities.

“In consideration for EDUHSD, allowing the above-named students to participate in the school-related activity/ies specified above, I/we voluntarily agree to release, waive, discharge, and hold harmless the EDUHSD and its trustees, officers, employees, and agents from any and all claims of liability arising out of their negligence, or any other act or omission which causes the above-named student illness, injury, death or damages of any nature in any way connected with the student’s participation in the school-related activity/ies. I/We also expressly agree to release and discharge EDUHSD, its trustees, officers, employees, and agents from any act or omission of negligence in rendering or failing to render any type of emergency or medical services.

 

“As parent or legal guardian of the student/participant under 18 years of age, I have read and voluntarily agree that my son/daughter may participate in the school-related activity/ies designated above and I sign this release on his/her behalf. In signing this document I fully recognize and understand that if my son/daughter is hurt, dies, or his/her property is damaged, I am giving up my right and the right of his/her heirs to make a claim or file a lawsuit against the EDUHSD, its trustees, officers, employees, and agent[.]

 

 “By signing below, I/we acknowledge that I/we: (1) have read this document and understand that I/we give up substantial actual or potential rights in order to allow the above-named student to participate in the school-related activity/ies and any associated field trip or excursion; (2) have voluntarily signed as evidence of acceptance of this Agreement without any inducement or assurance of any nature, with full appreciation of the all [sic] risks inherent in the school-related activity/ies; (3I have no question regarding the scope or intent of this Agreement and I (parent/guardian/non-minor student) have the right and authority to enter into this Agreement and to bind myself, the student, and any other family member, personal representative, assign, heir, trustee, or guardian to the terms of this Agreement. This is a release of all claims.” (Original boldface.)

[Note: the blue was added to highlight the facets of the waiver to which the signers agreed.]

 

Warning Regarding Head Injuries

It was revealed that the school went to great lengths to warn players and parents of the possibility and importance of head injuries. Included was a Parent Concussion/Head Injury Information Sheet. Nick and the father signed the sheet when they signed the waiver. Game management guidelines were followed by the school. Coaches were trained in awareness of head injuries and were familiar with the CIF Medicine Handbook regarding head injuries. All coaches had completed concussion training programs.

Various Rulings and More on California Waiver Law (citations not included)

  • When an individual signs an express waiverof liability, he “promises not to exercise the right to sue for harm caused in the future by the wrongful behavior of a potential defendant, eliminating a remedy for wrongdoing.”
  • Similarly, in signing an express assumption of risk, “the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant’s duty of care, and acknowledging the possibility of negligent wrongdoing. Both agreements permit behavior that normally would be actionable as tortious, although an express assumption of risk goes further, more clearly authorizing this behavior.”
  •  “ ‘In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone …. The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.
  • “[C]ases have consistently held that the exculpatory provision may stand only if it does not involve ‘the public interest.’ Similarly, “[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” 
  • However, “an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” 
  • Thus, in the recreational context, while a waiver of liability and assumption of risk can serve as a bar to liability based on negligence, it cannot serve as a bar to liability based on gross negligence.

 The court pointed out the effect of the waiver:

  • Here, the release stated that if Nick were to be “hurt, injured, or even die,” Nick and his parents would “not make a claim against or sue the El Dorado Union High School District (hereinafter EDUHSD), its trustees, officers, employees, and agents, or expect them to be responsible or pay for any damages.
  •  It acknowledged that “injuries might arise from … the actual or alleged failure by district employees, agents, or volunteers to adequately coach, train, instruct, or supervise,” and, “undiagnosed, improperly diagnosed, untreated, improperly treated, or untimely treated actual or potential injuries ….”
  •  The signatories then “willingly assume[d] all risks and hazards of potential injury, paralysis, and death in the school-related activity/ies.”
  • In addition to assuming the risks identified, in signing the release, Nick and his father “voluntarily agree[d] trelease, waive, discharge, and hold harmless the EDUHSD and its … employees, and agents from any and all claims of liabilityarising out of their negligence, or any other act or omission which causes the above-named student illness, injury, death or damages of any nature in any way connected with the student’s participation in the school-related activity/ies”
  • “expressly agree[d] to releaseand discharge the EDUHSD, its trustees, officers, employees, and agents from any act or omission of negligence in rendering or failing to render any type of emergency or medical services.”
  • In signing the release, Nick and Read unequivocally agreed to assume the risk of injuries caused by the negligent acts of the District employees in coaching and supervising Nick while he played football and in treating him for those injuries.
  • Additionally, they agreed to releasethe District and any of its employees from any liability associated with their possible negligence in coaching Nick and/or treating him for injuries.

 In Other Words: The signed release covered all allegedly negligent acts by coaches, and any other employee or volunteer, while they were engaged in “coach[ing], train[ing], instruct[ing], or supervis[ing]” in football. It also applied to negligent acts by coaches, and any other employees or volunteers, involved in diagnosing and/or treating Nick for potential injuries suffered while he was engaged in playing football. If the acts or inactions of district employees at issue here were at worst negligent—if they did not rise to the level of gross negligence—the Browns assumed the risk of those actions and released the District from any liability arising therefrom. 

Gross Negligence

The only way Nick can recover for his injuries is to show that the school district was grossly negligent. California courts have defined gross negligence thusly:

Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don’t care what happens.”  The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved.

‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,’  amounts to ordinary negligence. However, to support a theory of ‘gross negligence,’ ” a plaintiff must allege facts showing “either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’ ” ’ ‘ “Gross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind….’ “Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence.

Ruling

Here, coaches received training, players and parents were informed of risks, school complied with regulations, Nick showed no symptoms, care was that expected at a football game, and an ambulance was quickly present. Abundant evidence shows that the school showed substantial care, not scant care. Hence, the appellant court upheld the trial court’s grant of summary judgment in favor of the school district.

It is apparent that the power of the waiver was great. It released the school district from all claims of ordinary negligence. That left only gross negligence – which did not exist.

Risk Management Take-Away

Not all waivers are as broadly written as this one. Be sure your waiver is strong. The one you copied from a book or the internet probably does not provide you with the protection you expect.

Photo Credit: Thanks to Bely Medved  via Flickr.

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