By Doyice Cotten
In R.H. v. Los Gatos Union School District (2014 U.S. Dist. LEXIS 47035), a high school wrestler was injured when he wrestled a larger opponent in a match. There were many claims including mismatching and negligence. Prior to wrestling, the father of R.H. signed a liability waiver. Here we will only look at the waiver defense of the defendants.
When R.H. joined the wrestling team, his father signed the required “After School Sports Emergency/Health Insurance form” and release, which included the following waiver of liability. Its pertinent language was:
agrees to indemnify and hold the Los Gatos Union School District and Community Education and Recreation Department harmless and release the district and Department from any and all liability for any injury which may be suffered by [R. H.], arising out of or in any way connected with participation in [the wrestling team].
The document also included the following express assumption of risk language:
I HAVE READ THE AFTER SCHOOL SPORTS INFORMATION AND SCHOOL PARTICIPATION CONTRACT AND WILL ABIDE BY ALL RULES AND POLICIES AND FULLY UNDERSTAND THAT I ASSUME ALL RISKS FOR ANY INJURIES RECEIVED AND AGREE TO ACCEPT FINANCIAL RESPONSIBILITY.
Negligence and the Effect of a Waiver
An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. Generally, persons are under a duty to exercise due care to avoid injury to others, and a defendant who breaches that duty may be held liable for injuries that arise from his careless conduct. In the context of sports, and especially contact sports, “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.” Consequently, “[a]lthough defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in [a] sport itself, . . . defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Plaintiffs contend that Defendants increased the risks to R. H.’s safety above those normally associated with wrestling by falsifying his weight and matching him up against a larger, more experienced wrestler, thereby breaching their duty to R. H. Opp’n at 16-17. However, because the Court finds that Plaintiffs expressly released Defendants from liability for injuries suffered in connection with wrestling on the Fisher team, and expressly assumed the risk of such injuries, Plaintiffs’ state law negligence claims fail.
California Waiver Law
The gist of the court’s discussion and ruling are excerpted and presented here:
A valid written release may exculpate a tortfeasor from future negligence or misconduct. Such a release may be either an advance waiver of liability, express assumption of risk, or both. “By an advance waiver of liability, a potential plaintiff 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. By 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.”
The release signed by the father contained both an advance waiver of liability and an express assumption of risk. The court stated:
They release the school from liability for any injury which may be suffered by [R. H.], arising out of or in any way connected with participation in [the wrestling team] and assume all risks for any injuries received. The Court finds the release signed by Plaintiffs valid and enforceable, and consequently that the release bars Plaintiffs negligence claims, as explained below.
Requirements and Interpretation of California Waivers
• A liability release “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.”
• “[A] release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find.”
• “[R]ead as a whole, [a written release] must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.” However, a release need not achieve perfection, … .
• “[t]he inclusion of the term ‘negligence’ is simply not required to validate an exculpatory clause.”
• The determination of whether a release contains ambiguities is a matter of contractual construction, and is a question of law, not of fact.
• An ambiguity exists when “a party can identify an alternative, semantically reasonable, candidate of meaning of a writing,” and ambiguities may “be patent, arising from the face of the writing, or latent, based on extrinsic evidence.”
• “A release containing ambiguity as to its scope will normally be construed against the drafter.”
• The express language of the release determines its scope. “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement.”
• When a release expressly releases the defendant from any liability, a plaintiff need not have had specific knowledge of the particular risk that ultimately caused the injury.
• If all liability is released, the release applies to any negligence on the part of the defendant, and “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.”
• The result of an express release of liability is that “the defendant owes no duty to protect the plaintiff from injury-causing risk.”
• Accordingly, where a defendant raises the defense of express assumption of risk, “[t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.”
• “An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release.”
In this case, the court ruled that the waiver was clear, unambiguous, and explicit. It called for the release of the defendant from liability for “any injury” arising from or connected in any way to wrestling participation. It was not buried in the document and was clearly set forth. The purpose was clear. For these reasons, the court found that the injury fell within the scope of the document and effectively released the defendant from liability.
Photo Credit: Thanks to Chuck Hunkeler at Flickr.