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Established Protecol for Administering Electronic Waiver Protects Fair When Participant is Killed

By Doyice Cotten

The 28th District, an agency in the State of California, organizes and operates the San Bernardino County Fair and owns and operates the event location. The fair’s attractions are owned and operated by independent vendors. The vendor in this case, FD Event, owned and operated the “Free Drop Experience.” It involved jumping off scaffolding 36 feet high onto a stuntman airbag. When constructing the scaffolding for the May, 2015, fair the platform at the top was eliminated because it seemed to add too much stress to the tower. The platform would have extended four feet out from the tower and be directly over the air bag. For the fair, each jumper jumped directly from the tower rather than from an extended platform.

The 28th District possessed the power to shut down an attraction if it was unsafe, but it had no written inspection system, checklist, or documents on how to inspect the premises, attractions, or rides to make sure they were safe. It did no testing of the attraction to see if users were exposed to a risk of harm, never questioned why there was no jumping platform, and did not ask for, nor was provided, a scaffolding permit or documentation that FD Event’s employees were qualified to erect scaffolding. FD Event failed to obtain a permit and was cited.

On May 28, 2015, Sabrina Gordon, wife of the plaintiff, attended the fair, signed a waiver, and jumped from the tower.  Despite being instructed to jump away from the scaffolding and to not grab the scaffolding during the jump, decedent, in fact, grabbed the scaffolding, which caused her body to swing into the scaffolding and to fall onto the unprotected concrete surface. She died shortly thereafter of “blunt force injury of the head.” This lawsuit followed (Gordon II v. 28th District Agricultural Association, 2019).

A sign was posted at the attraction’s ticket booth stating:

ALL JUMPERS MUST SIGN A WAIVER.

WHY DO WE REQUIRE WAIVERS? Because this CAN be dangerous if you don’t jump correctly.

TYPE OF INJURIES CAN HAPPEN?  Catastrophic injuries . . . can include … paralysis, … and even death.

ASSUMPTION OF RISK: As a condition to participating, YOU HEREBY ASSUME RISKS OF YOUR PARTICIPATION

An FD Event employee, ensured that participants signed the waiver and release, as a condition of participating in the attraction. Participants were not allowed to purchase a ticket for the attraction until they had read and signed the waiver and release. The procedure produced an electronic “Waiver & Release of Liability” form containing decedent’s information and signature (indicated by her hand to confirm her acknowledgment that she understood the risks and was volunteering to jump at her own risk).

Plaintiffs sued alleging strict products liability, negligence, statutory liability/dangerous condition of public property, and statutory liability/common carrier liability. The 28th District moved for summary judgment based on the waiver in which the deceased released the District and the owner from liability of all claims.

Plaintiffs opposed the motion claiming there was no evidence the deceased signed the waiver; gross negligence for failure to research and inspect the jump (a violation of industry standards); and expert witness testimony that the attraction constituted a dangerous condition.

Defendants replied that

(1) there was a sign near the waiver table requiring all jumpers to sign a waiver,

(2) decedent was told she had to fill out a waiver or she could not jump,

(3) decedent asked an FD Event employee what kind of injuries she was waiving, and

(4) one of the women in decedent’s group saw decedent sign the electronic waiver. In support of the reply separate statement, 28th District referenced and relied on the deposition testimony of the key witnesses Robyn Bell, Maria Espitia, and Hannah Hendrix; however, it failed to provide an exhibit pack containing the transcripts of these depositions.

The trial court ruled that supported the waiver and granted summary judgment in favor of the defendants.

The Appeal

Plaintiffs argued these issues:

(1) whether decedent signed or read the waiver and release,

(2) 28th District’s liability for the dangerous condition on its property;

(3) 28th District’s gross negligence,

(4) decedent’s assumption of the risk of participating in the attraction,

(5) whether 28th District increased the risk involved in the attraction, and

(6) decedent’s comparative negligence. Plaintiffs further allege the trial court made no ruling on the parents’ standing.

The appellate court concluded that the summary judgment based on the waiver was proper, they only needed to determine if there was gross negligence.

Authenticity of the Signature

Plaintiffs argued that 28th District failed to prove decedent “signed (or even read)” the waiver and release. We disagree. Regarding authentication of an electronic signature, the court stated that:

 Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform Electronic Transactions Act … an electronic signature has the same legal effect as a handwritten signature … [‘A . . . signature may not be denied legal effect or enforceability solely because it is in electronic form.’] Any writing, including an electronically signed agreement, must be authenticated before the writing, or secondary evidence of its content, may be introduced into evidence. Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.

Civil Code section 1633.9 addresses authentication of an electronic signature. Such authentication establishes the electronic signature is, in fact, the signature of the person the proponent claims it is. Civil Code section 1633.9, subdivision (a), states: “An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy [effectiveness or value] of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” Under this section, 28th District therefore could establish the act of decedent electronically signing the waiver and release by “any manner” including showing the existence of a procedure requiring a participant to electronically sign a waiver and release prior to purchasing a ticket and participating in the attraction. Civil Code section 1633.9 does not require evidence of an effective security procedure but merely states such evidence is relevant to authenticating an electronic signature. [Emphasis added.]

28th District urged the acceptance of the evidence supporting the authenticity of the signature: the electronic copy of the waiver and release, the deposition testimony establishing the protocol for participating in the attraction, and the deposition testimony of decedent’s classmates confirming the adherence to the protocol. The court accepted the signature as valid.

Gross Negligence Issue

Plaintiffs argued 28th District was grossly negligent because

(1) failing to “do any due diligence with respect to the [attraction],”

(2) failing to discover that “Section 5.3.3 of ASTM F2374-10[ ] required that [the attraction] be designed so that users were contained at all times within the confines of the bag walls,”

(3) failing to recognize that “what was set up was not what it agreed to have on its property (for lack of an overhanging platform) and/or that the [attraction] exposed users to a gap which posed a substantial risk of injury, even if used with due care,” and

(4) failing to determine whether FD Event was qualified to run the attraction and had obtained the necessary permits.

Ruling

The court felt the the inadequacies pointed out by the plaintiff reached the level of passive negligence, but not gross negligence. Since the waiver protected against negligence, the court upheld the trial court ruling of summary judgment for the defendants.

Photo Credit: Thanks to  Gord Webster via Flickr.

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