California Town Dodges the “Fraud-Bullet” in Group Waiver Case

By Doyice Cotten

group waiverErnest Jones sued the City of Ukiah alleging negligence after breaking his ankle while sliding into second base in a softball game. He claimed the city negligently supervised and maintained the fields causing an injury (Jones v. City of Ukiah, 2013 Cal. App. Unpub. LEXIS 5125).

Jones had signed a group waiver which, frankly, left much to be desired in its format. Some of the problems were:

  • Title:
    • “2008 FALL MEN’S SOFTBALL LEAGUE SOFTBALL ROSTER FORM ALL PLAYERS MUST SIGN BELOW BEFORE THEY CAN PLAY.” The title failed to indicate that there was a waiver.
  • Immediately below this heading:
    • “A player signing his name on this Softball Roster form acknowledges that they have read and understand all of the provisions of the waiver and release form on the reverse side of this form. Please contact the Community Services Department for more information: 463-6714.” This information was in a smaller typeface (italic) and did not focus on “waiver and release.”
  • Below this language were spaces for a roster
    • First Column: “PRINT PLAYER’S NAME.”
    • Second Column: “PLAYER’S SIGNATURE (Read Waiver Before Signing).”
    • Other Columns: address, phone, other contact information.
  • The reverse side of the form stated:
    • “2008 FALL MEN’S SOFTBALL LEAGUE SOFTBALL LEAGUE ROSTER & RELEASE OF LIABILITY.”
    • The waiver was below this title on the back side of the paper.
    • The paper was on a clipboard, so the waiver was not visible.

So although there was some reference to the waiver printed on the reverse side of the document, its presence was not highlighted in any way.

Jones stated that when he filled out the roster form, he did not know he was signing any kind of contract or waiver. He signed the waiver hurriedly because he was late and the last to arrive for practice. He claimed he did not see anything called a “Waiver,” and did not know anything was written on the back of the form. In addition, he said the form was attached to a clipboard so he did not see the back of the document. No one told him that by signing a waiver he was contracting away his rights; he thought he was simply enrolling in the team. He said the form did not appear to be a contract; but rather a roster with his name being the twelfth and final name on the list.

Fraud

Jones claims he was deceived as to the nature of the document, did not intend to enter a contract, and should not be bound by it. The court addressed fraud as follows:

 “Fraud in the execution” means that the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all; since mutual assent is lacking, the contract is void. However, a contract will not be “considered void due to the fraud if the plaintiff had a reasonable opportunity to discover the true terms of the contract. The contract is only considered void when the plaintiff’s failure to discover the true nature of the document executed was without negligence on the plaintiff’s part. . . . Reasonable diligence requires a party to read a contract before signing it.” (Rosencrans v. Dover Images, Ltd. (2011)

The appellate court affirmed the trial court ruling that Jones was bound by the release. It reasoned that although the side of the form that plaintiff signed is not titled “Release” or “Waiver,”

it states in italics, immediately after the boldfaced, all-capital advisement that all players must sign before they can play, that players signing the form acknowledge “that they have read and understand all of the provisions of the waiver and release form on the reverse side of this form.” At the top of the signature column are the words, “Read Waiver Before Signing.”

Comment

The City of Ukiah was very fortunate in this decision. Courts in many states would not have enforced this waiver. Some states hold that the waiver must be “conspicuous” and that there must be a “meeting of the minds.” When such is not clearly met, the waiver fails and the provider is left unprotected. Additional care should be taken in regard to waiver administration when having participants sign group waivers.