By Doyice Cotten
Quite often I get a request by a service provider to take a look at their waiver and tell them if I think it is adequate. So I thought many readers might like to see how a court looks at a waiver to determine if it is enforceable. A California case involved an incident at a trampoline facility; the court discussed why the waiver was valid and enforceable (Torres v. House of Air, LLC, 2016 Cal. App. Unpub. LEXIS 3163).
Be aware, however, that the discussion of the court is in light of California law; state waiver laws differ greatly. While everything may not be applicable to your state, it will give the reader a general idea of what a court might consider.
The waiver, and the discussion of the court, follow:
HOUSE OF AIR, LLC PARTICIPANT AGREEMENT, INDEMNIFICATION,
GENERAL RELEASE AND ASSUMPTION OF RISK
“I UNDERSTAND THAT TRAMPOLINING IS AN INHERENTLY DANGEROUS ACTIVITY. In consideration of House of Air, LLC (‘HOA’ or ‘House of Air’) allowing me . . . to participate in HOA activities, including, but not limited to, trampolining, trampoline park access, trampoline dodgeball, trampoline basketball, aerial training, fitness classes, bounce house and café access and other athletic and amusement activities (collectively ‘Activities’), I agree to forever release, indemnify and discharge House of Air, LLC, the United States of America, The Presidio Trust, and their respective affiliates, agents, officers and directors on behalf of myself, my spouse, my children, my parents, my guardians, and my heirs, assigns, personal representative and estate, and any and all other persons and entities who could in any way represent me . . . .
The Response of the Court
The first paragraph of the participant agreement contained language in which Torres will “agree to forever release, indemnify and discharge” HOA and other entities. While this provision defined who Torres was releasing, it contained no specifics as to what she was releasing. Thus, standing alone, that paragraph was undeniably inadequate. But the participant agreement contained other provisions that clearly and unambiguously released Torres’s claims against HOA.
“I acknowledge that participation in the Activities entails both known and unknown risks that could result in SERIOUS INJURY or DEATH, resulting from such things as, without limitation, exposed springs, hooks, frames and/or other pieces of equipment; poor lighting; lack of supervision and/or trained spotters; lack of protective padding, mats, netting, and/or other proper equipment; lack of any other proper safety measure; slipping and/or falling on and/or off equipment; collision with fixed objects and/or people; attempted jumps, runs, stunts, tumbles, somersaults, maneuvers and/or acrobatics; having multiple participants participate in the Activities at one time; the physical condition, fitness and/or abilities of me and all other participants; weight differences between me and other participants; weather and/or all other environmental conditions; my and HOA negligence, actions and/or omissions committed by me, . . . HOA and/or any other persons; and/or incomplete instructions.
The Response of the Court
The second paragraph of the participant agreement commenced with an acknowledgment that “participation in the Activities”—defined in paragraph one to include trampolining, aerial training, fitness classes, and “other athletic and amusement activities”—”entails both known and unknown risks that could result in SERIOUS INJURY or DEATH . . . .” The paragraph then lists a slew of such potential risks, including, “without limitation,” “lack of supervision and/or trained spotters,” “lack of . . . proper equipment,” “lack of any other proper safety measure,” “attempted jumps,” “my and HOA negligence,” “actions and/or omissions committed by me, . . . HOA and/or any other persons,” and “incomplete instructions.”
“I expressly and voluntarily release, acquit, and forever discharge House of Air, LLC, the United States of America, The Presidio Trust and agree to hold their respective affiliates, agents, officers and directors harmless of and from all, and all manner of action and actions or omission(s), cause and causes of action, suits, debts, damages, judgments, and claims and demands whatsoever, in law or in equity.
The Response of the Court
Having identified the numerous potential risks to using the equipment at the HOA facility, the next [third] paragraph in the participant agreement states, “I expressly and voluntarily release, acquit, and forever discharge House of Air, LLC, the United States of America, The Presidio Trust and agree to hold their respective affiliates, agents, officers and directors harmless of and from all, and all manner of action and actions or omission(s), cause and causes of action, suits, debts, damages, judgments, and claims and demands whatsoever, in law or in equity.”
Reading the participant agreement as a whole, as we must, we understand these provisions to clearly and unambiguously release HOA from liability for Torres’s injuries: the second paragraph described the potential risks of Torres’s participation in trampolining activities at HOA, and the third paragraph stated that Torres was releasing, acquitting, forever discharging HOA, and holding it harmless, from all actions or omissions, causes of action, suits, damages, judgments, and claims.
Torres disagrees, maintaining that the release provision in the third paragraph was ambiguous for multiple reasons. First, she argues that the paragraph does not identify what is being released, since HOA’s negligence and liabilities are only referenced in other paragraphs. And, citing …, she contends the “paragraphs do not necessarily bear on each other.” As previously noted, however, we are to read the agreement as a whole. And Solis is not to the contrary. It merely recognized that in the release at issue in that case, the assumption of risk and indemnity provisions were “grammatically and functionally separate” from the release paragraph and thus did “not necessarily bear on the temporal scope of the release . . . .” Here, we do not borrow from paragraph four’s assumption of risk provision or paragraph six’s indemnity provision to reach our conclusion.
Moreover, contrary to Torres’s contention, the third paragraph does in fact identify what Torres released: “all manner of action and actions or omission(s), cause and causes of action, suits, debts, damages, judgments, and claims and demands whatsoever, in law or in equity.” Torres contends it is unclear whether this passage applied only to the indemnity language in the third paragraph or was intended to apply to the release language in that paragraph as well. This is so, she reasons, because the passage only followed the indemnity language—”hold . . . harmless of and from all”—and “there is no language indicating the parties’ [sic] intended the indemnification language to also apply to the releasing language.” We cannot agree that Torres’s reading of paragraph three is an “‘alternative, semantically reasonable'” reading of the language. Rather, the paragraph is reasonably susceptible to only one reading: that Torres was releasing HOA and holding it harmless from “all manner of action and actions or omission(s), cause and causes of action, suits, debts, damages, judgments, and claims and demands whatsoever, in law or in equity.”
Torres also challenges the enforceability of the third paragraph’s release provision on the ground that it does not expressly release HOA from liability for its own negligence. The law does not require express use of the word “negligence,” as the court in … recognized. There, a member of a health club brought a negligence action against the club for injuries she sustained during an aerobics class. The health club obtained summary judgment based on the following release plaintiff signed when she joined the club: “Accidents/Injury: The member agrees that all exercises and use of the fitness centers are undertaken by the member at the sole risk of the member, and that the fitness center shall not be liable for any claims for injuries or damages whatsoever to person or property of the member or of a guest of a member arising out of or connected with the use of the fitness center.”
Readily dismissing plaintiff’s first argument that the exculpatory provision was ineffective because it was not highlighted, italicized, or differentiated by size, the Court of Appeal turned to plaintiff’s claim that the provision was unenforceable because it did not contain the word “negligence.” It rejected this argument, because “[t]he inclusion of the term ‘negligence’ is simply not required to validate an exculpatory clause,” pointing out that the cases upon which the plaintiff relied found various releases unenforceable because their exculpatory provisions were not clear and unambiguous, not because they omitted the term “negligence.” Rather, the court explained, the dispositive question was whether the release provision was clear, explicit, and comprehensible in itself and when considered and read in whole with the entire agreement. The court also quoted with approval the health club’s argument that “‘[w]ere the word “negligence” not read into the waiver and release clause, it would be impossible to imagine what appellant was releasing respondent from, as appellant would already be unable to hold [respondent] liable for injuries not involving [respondent’s] negligence.'”
Here, reading the participant agreement as a whole, it is evident that the parties intended the release to cover injuries resulting from HOA’s negligence. As noted, paragraph two commenced with an acknowledgment that participation in activities at HOA involved risks that could result in serious injury or death, risks that included HOA’s negligence. In the following paragraph, Torres then released HOA from all actions, causes of action, suits, claims, and damages. And, “[i]f a release of all liability is given, the release applies to any negligence of the defendant.”
As to whether Torres’s claims came within the scope of her release of HOA from liability for its negligence, the Benedek court explained, “‘”It is only necessary that the act of negligence, which results in injury to the releaser, be reasonably related to the object or purpose for which the release is given.”‘ Such was the case here. The first paragraph of the participant agreement specified that the agreement was “[i]n consideration of [HOA] allowing [Torres] to participate in HOA activities . . . .” It only stands to reason that HOA’s alleged acts of negligence, all of which purportedly occurred in connection with Torres’s use of HOA’s trampoline, were related to the purpose for which Torres signed the release.
In short, the third paragraph contained a valid waiver of Torres’s claims against HOA. But even if we were to agree with Torres that it did not, the seventh paragraph—located immediately above Torres’s signature—contained this broad, inclusive language: “By signing this document, I intend to forever waive my right . . . to maintain any lawsuit or action against House of Air based on any claim of personal injury or death or property loss or damage. I have had sufficient opportunity to read and understand this agreement and consult with legal counsel, or have voluntarily waived my right to do so. I knowingly and voluntarily agree to be bound by all terms and conditions set forth herein.” As expressly stated, by this paragraph, Torres intended to waive her right to hold HOA liable for any personal injuries she may suffer. We cannot perceive how this could be construed as anything but a clear, unambiguous, and explicit release of HOA from liability for Torres’s unfortunate injuries.
“I agree that I . . . am voluntarily participating in the activities offered by HOA including, but not limited to, the use of the equipment, facilities and the premises. I am assuming on behalf of myself . . . all risk of personal injury, death, or disability to myself . . . that may result from participation or use of the HOA facilities, or any damage, loss or theft of any personal property which I . . . may incur. I understand that the HOA facility has trampolines and other equipment and that using trampolines has inherent risks. . . . I certify that I have adequate health insurance to cover any injury or damage that I may cause or suffer, or else I agree to personally bear the costs of such injury or damage. I further certify that I assume all risks of any medical or physical condition I may have.
[Author’s Note: This paragraph did not factor into the ruling.]
“I agree to the sole and exclusive venue of the City and County of San Francisco, CA. I further agree that the substantive law of California shall apply without regard to any conflict of law rules of that State. I also agree that if any portion of this agreement is found to be void or unenforceable, the remaining portion shall remain in full force and effect. Any controversy between the parties hereto involving any claim arising out of or relating to a breach of this Agreement shall be submitted to and be settled by final and binding arbitration in San Francisco, California, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association.
[Author’s Note: This was just a provision specifying venue, choice-of-law, and agreement to arbitrate.]
“I understand that this agreement extends forever into the future and will have full force and legal effect each and every time I visit House of Air, whether at the current location or any other location or facility. I agree to indemnify and hold House of Air harmless from and against any and all losses, liabilities, claims, obligations, costs, damages and/or expenses whatsoever paid, incurred and/or suffered by HOA, including, but not limited to, attorneys’ fees, costs, damages and/or judgments HOA incur [sic] in the event that I cause any injury, damage and/or harm to any other person while at House of Air. . . .
[Author’s Note: This paragraph set a duration on the agreement and provided for indemnification by the client. It was not a factor in the decision.]
“By signing this document, I intend to forever waive my right . . . to maintain any lawsuit or action against House of Air based on any claim of personal injury or death or property loss or damage. I have had sufficient opportunity to read and understand this agreement and consult with legal counsel, or have voluntarily waived my right to do so. I knowingly and voluntarily agree to be bound by all terms and conditions set forth herein.”
[Author’s Note: This paragraph simply restated client’s agreement to release House of Air from liability. Earlier, the court stated that this statement was sufficient to protect House of Air.]
The reader should understand that a well-written waiver can provide protection from liability for injuries resulting from provider negligence; on the other hand a carelessly- written waiver can leave the provider wishing for protection that is not to be had. Courts in each state look at waivers differently. It is important that the waiver be written in light of the waiver law of that particular state. Here, the waiver protected – but in many states, this waiver would not have been enforced.