By Doyice Cotten
California waiver law was addressed in a recent inflatable rock climbing wall case (Vinson v. Paramount Pictures Corporation, 2013 Cal. App. Unpub. LEXIS 3380). The case is summarized here, but much more can be learned about California waiver law by reading the entire case
Robert Vinson was a member of the Paramount “Studio Club.” To be a member of the Club, he was required to complete an application and pay a fee. The application contained a section entitled “Assumption of Risk and Release” which provided, in relevant part:
“By enrolling as a member in [the Club], member hereby acknowledges that from time to time the Club sponsors certain events and activities that might present a risk of harm to the participants. In consideration of the Club’s arranging such events and activities . . . , member hereby assumes all risks associated with or resulting from such participation and member . . . releases . . . [appellants] of and from any and all claims . . . , which member may have or which may hereafter accrue on account of . . . any and all known and unknown, foreseen and unforeseen bodily and personal injuries . . . resulting or to result from any accident . . . which may occur as a result . . . of the member’s participation in any of the events or activities sponsored by the Club.”
In December 2009, the Club held a holiday party at Paramount Studios. The party included carnival games, food booths, performances, and carnival games – one of which involved an inflatable, 30 foot tall rock-climbing wall. Climbers were strapped into a harness connected to a rope that passed through a pulley at the top of the wall, they climbed the wall, and an operator assisted using a device to control the rope let out. At some point Vinson fell and suffered injury.
Vinson’s Account
According to Vinson, he was given no instruction on how to secure the harness or how to climb the wall. He testified that once he reached the top of the wall, he asked the two operators attending the wall what to do next. Vinson said he was told to remove his hands from the wall, grab the rope, and lean back. When he did as told, all of the tension in the rope left and he fell to the base, struck the inflatable apron, bounced at least three feet into the air, and landed on concrete pavement.
Two Operators’ Account
The operators of the climb testified that the operator holding the rope for Vinson instructed him on how to put on the harness and how to climb the wall. They said that Vinson, upon reaching the top, began to jump up and down off the wall and push back and forth. They said that the operator holding the rope told Vinson to stop and began lowering him down the wall. When he was at about 50 to 75 percent down the wall, enough slack was released on the rope to allow Vinson to reach the bottom. Vinson jumped , landed on the inflatable apron, and never hit the concrete.
The Expert Witness
An expert in rock-wall climbing stated that the operators should have had full control of the rope at all times, regardless of what the climber was doing. The expert stated that the operators have sole control of the amount of rope released from such a mechanism and determine the pace of a climber’s descent. The operators testified that neither of them had seen the inflatable wall manual containing detailed instructions. The operator for Vinson’s climb had received only one hour of training; the expert testified that one half to a full day of training is typical, followed by constant supervision during the first day of operating a wall. The expert felt that the evidence indicated that the operator did not have an understanding of the mechanics of the pulley system and was negligent in controlling the climb.
The Trial Court
Vinson sued alleging negligence. Paramount moved for nonsuit contending the Release constituted a waiver of any claims arising out of participation in any events at the Club, precluding liability. The trial court found the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties” and denied appellants’ motion on that ground. Paramount also argued the primary assumption of the risk doctrine should also apply to preclude liability because Vinson assumed the risks inherent in climbing the wall. The court found the climbing of an inflatable rock wall was somewhere between a carnival ride and a sport. It concluded the doctrine did not apply and denied the motion for nonsuit. The trial court returned a verdict in favor of Vinson and the case was appealed.
Appellate Court Looks to California Law
The appellate court looked to previous California cases and made the following observations:
1) Persons generally have a duty to use due care to avoid injuring others, and liability may result if their negligent conduct causes injury to another. (Civ. Code, § 1714; Knight v. Jewett (1992) 3 Cal.4th 296, 315.)
2) A private party may expressly agree to release any claims of negligence against another by contract; such an agreement “is valid unless it contravenes public policy.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1292, p. 686; see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758 [future liability for ordinary negligence generally may be released].)
3) Our Supreme Court has noted that California courts have invalidated releases of liability for ordinary negligence when it is determined that the “particular release concerns a service that transcends a purely private agreement and affects the public interest.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 757-758.)
4) Private agreements made in connection with various sporting events or recreational activities generally have been upheld, as they do not involve necessary services and therefore do not contravene public policy or “transcend the realm of purely private matters.” (Id. at p. 759.) We find this release, signed in consideration for participation in various activities at a private club, constitutes “a purely private agreement”; Vinson’s participation in the rock-climbing activity did not involve necessary services and was a recreational activity well within the broad range of activities in which a number of California cases have upheld express waivers. (Id. at pp. 757, 759-760.)
5) “To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490.
6) “It is also necessary that the expressed terms of the agreement be applicable to the particular misconduct of the defendant . . . .’ [Citation.].” (Ibid., italics omitted.)
7) “With respect to the question of express waiver, the legal issue is not whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484.)
The appellate court did not support the trial court’s ruling that the waiver was not not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties. The appellate court agreed with the defendant that the waiver was explicitly intended to cover any activity at the Club and was sufficiently unambiguous to cover the activity at issue; further, the court agreed that it was unnecessary to specifically identify rock-climbing as a covered activity, or the risks involved in rock climbing, in order for the Release to be effective.
Appellate Court Ruling
Vinson signed a release of all claims for any injuries suffered on appellants’ premises in consideration for membership in the Club and access to certain events. We find the language of the release signed by Vinson broad and unambiguous. The fact that the activity resulting in the injury was not specifically mentioned in the express terms of the release does not make it ineffective. Having consented to release any claims against appellants based on injuries incurred while participating in any activities at the Club, Vinson absolved appellants of liability for ordinary negligence during his participation in this particular activity. Waiver upheld. Trial court ruling reversed.