By Doyice Cotten
Note: This posting is not intended to provide an comprehensive presentation on California waiver law, but rather to offer the reader a brief look at what some of the courts have said about waivers and their enforcement.
An agreement, read as a whole, must clearly notify the prospective releaser or indemnitor of the effect of signing the agreement.” (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983)
Waiver and release forms are strictly construed against the defendant. (Lund v. Bally’s Aerobic Plus, Inc. (2000)
A release need not “achieve perfection” to be effective. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989)
An ambiguity exists when a party can identify an “alternative, semantically reasonable” meaning of a writing.
An “alternative, semantically reasonable” construction of the waiver creates a triable issue of fact concerning whether and to what extent the waiver applied to appellants’ claims. (Solis v. Kirkwood Resort Co. (2001)
If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.
If a release is ambiguous, and it is not clear the parties contemplated redistributing the risk causing the plaintiff’s injury, then the contractual ambiguity should be construed against the drafter, voiding the purported release. (Zipusch v. LA Workout, Inc. (2007)
Specification of “Negligence”
A release is sufficient if it “constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence.” (Paralift, Inc. v. Superior Court (1993)
The waiver must clearly, unambiguously, and explicitly indicate that it applies to risks and dangers attributable to respondent’s (or its employee’s) negligence that may not be inherent in the activity. (Sweat v. Big Time Auto Racing, Inc.)
A contract in which a party expressly assumes a risk of injury is, if applicable, a complete defense to a negligence action. (Knight v. Jewett (1992); Sweat v. Big Time Auto Racing, Inc. (2004)
Knowledge of Risk
Where a participant in an activity has expressly released the defendant from responsibility for the consequences of any act of negligence, “the law imposes no requirement that [the participant] has had a specific knowledge of the particular risk which resulted in his death [or injury.]”
For an express assumption of the risk provision to be effective, “‘it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm.” (Leon v. Family Fitness Center (#107), Inc. (1998)
Not every possible specific act of negligence by the defendant must be spelled out in the agreement or discussed by the parties.
Where a release of all liability for any act of negligence is given, the release applies to any such negligent act, whatever it may have been. It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given. (Leon v. Family Fitness Center (#107), Inc. (1998)
The California Supreme Court held “that 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.” (City of Santa Barbara v. Superior Court (2007)
California courts define “gross negligence” “as either a ”want of even scant care” or ”an extreme departure from the ordinary standard of conduct.” (City of Santa Barbara)
Gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.” (Eriksson v. Nunnink (2011)
In contrast to willful misconduct, gross negligence does not require an intent to do harm or to act with absolute disregard of the consequences. (Meek v. Fowler (1935)
It is well settled a parent may execute a release on behalf of his or her child. (Aaris v. Las Virgenes Unified School Dist. (1998); Hohe v. San Diego Unified Sch. Dist. (1990)
Child Care Waivers
Exculpatory agreements that purport to relieve child care providers of liability for their own negligence are void as against public policy. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003)
Photo Credit: Thanks to photologue_np at Flickr.