By Doyice Cotten

In Jones v. City of Ukiah (2013 Cal. App. Unpub. LEXIS 5125), Ernest Jones was injured sliding into second base in a softball game. He then sued the city alleging negligence, gross negligence, and statutory liability for having a dangerous condition on public property – claiming that the base was improperly anchored and did not lie flat. The trial court granted summary judgment in favor of the City and the plaintiff appealed.

Group Waiver

The first issue addressed involved the enforceability of the group waiver.  Plaintiff had signed a combination roster form and waiver. The first side of the document stated:

“2008 FALL MEN’S SOFTBALL LEAGUE SOFTBALL ROSTER FORM ALL PLAYERS MUST SIGN BELOW BEFORE THEY CAN PLAY.”

Immediately below this heading, in smaller typeface, the form stated:

“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.”

Below this language were spaces for a roster. The first column said, “PRINT PLAYER’S NAME.” The second column said, “PLAYER’S SIGNATURE  (Read Waiver Before Signing).” The remaining columns asked for address, phone, and other contact information. Plaintiff was the last of the 12 players to sign the form.

The reverse side of the form stated:

“2008 FALL MEN’S SOFTBALL LEAGUE SOFTBALL LEAGUE ROSTER & RELEASE OF LIABILITY.”

Below the title were two sub-headings. First, “HOLD HARMLESS/INDEMNIFICATION FOR ADULT ATHLETIC PARTICIPATION,” followed by an indemnification agreement, and second, “SOFTBALL PLAYER WAIVER AND RELEASE OF LIABILITY,” followed by a waiver of liability.

Jones stated that when he signed the roster form, he did not know he was signing a waiver of liability. He said he had arrived late and was in a hurry when he signed the waiver. He saw no waiver and did not know anything was on the back of the form. He said the form was attached to a clipboard, and he did not see the back of the form. He said he did not read the italicized text on the roster because “it was hard to see and because it didn’t occur to me that the Roster could have any legal effect.” Further, no one told him he was signing away the right to redress for injury.

The court, relying on Rosencrans v. Dover Images, Ltd. (2011), explained

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.

The appellate court agreed with the trial court that plaintiff is bound by the release, reasoning:

• 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.”
• That at the top of the signature column are the words, “Read Waiver Before Signing.”
• The reverse side of the form is titled “2008 Fall Men’s Softball League Softball League Roster & Release of Liability,” includes explicit language pointing out the danger of sliding into base, and states in clear, unambiguous terms that by signing the form the player agrees to the terms of the waiver and release.
• Although plaintiff stated that he arrived late to practice and was in a hurry, there is no basis to conclude he was prevented from reading the entire form before signing it.
• On these facts, Jones is bound by the terms of the waiver.

Gross Negligence

Regarding the issue of the validity of the waiver in light of a gross negligence allegation, the court made clear that Jones was correct 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)).  However, the court rejected the argument for two reasons: 1) when an issue is not raised in the trial court, it cannot be considered in appellate court; and 2) there was no evidence to show an extreme departure from ordinary care.

California Civil Code Section 1668

Jones claimed that a waiver cannot exculpate a governmental defendant from its statutory liability for a dangerous condition of public property. He relies on two statutes in support of the claim:

• Civil Code section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
• Government Code section 835 provides that, “[e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The appellate court disagreed stating the section 1668 does not apply to every contract; only to contracts that involve the public interest. The court added that it is well-established that recreational sports do not implicate the public interest. Jones relied on Capri v. L.A. Fitness International (2006), a case involving the violation of health-related statutes regulating the care of swimming pools. The provisions were part of a detailed regulatory scheme that criminalized any violation. In Jones, however, the applicable statute simply codifies the common law under which an entity is liable for a dangerous condition of its property and sets the conditions under which a public entity will be held liable for such a condition. The court ruled since the waiver did not implicate the public interest, it was enforceable.

Summary

Finding for the defendant City of Ukiah on all three issues, the appellate court affirmed the trial court grant of summary judgment.

Risk Management Take-Aways

• First, the city was very fortunate in the ruling regarding the group waiver. Obviously, the waiver was inadequately administered – which is a common failing with such waivers.
• Hopefully, it is obvious that an exculpatory document that has one function only is much safer than a dual function document. Simply put, don’t combine the waiver with a sign-in sheet – use a stand-alone waiver.
• Always include reference to the “negligence” of the service provider. This waiver did not. In many states (and in some California appellate districts), a waiver is not enforceable unless “negligence” is included.

 

Photo Credit:  Thanks to Lazurite at    http://www.flickr.com/photos/lazurite/4527391480/sizes/z/in/photolist-7U54KN/