by Doyice Cotten
A recent California waiver case involved a number of issues, one of which we will address here. When faced by a waiver that the plaintiff signed, the waiver often questions whether they signed the waiver claiming they don’t remember signing the waiver, they did not understand that it was a waiver, they didn’t read the waiver before signing, or the waiver was in a membership agreement which they didn’t read or didn’t know the waiver was there.
In the case at hand (Bazylevich v. Braemar Country Club, 2019), one of the issues involved the signing of the waiver; the waiver was within the membership agreement. They admit signing the agreement, but claim they did not know the agreement contained a waiver of liability. The response of the court in this case was the same as it would of been had the plaintive tried to avoid the waiver’s effect by claiming that he or she had failed to read the agreement. The court quoted the Hulsey v. Elsinore Parachute Center (1985) ruling stating:
In the absence of fraud, overreaching or excusable neglect, … one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.
Thus, the court ruled that the waiver was valid.
This case involved a California incident, a California court, and California law, but the laws are similar in all states and such rulings are abundant. California courts, and others, have gone so far as to state that the general rule is that parties who cannot read, cannot read English, or are legally blind cannot avoid the effect of a waiver on the basis of hot have read the document (Randas v. YMCA of Metropolitan Los Angeles, 1993).
Risk Management Advice
Regardless, best practice, in cases in which the signer is unable to read for some reason, would be to be certain a non-reader understands the effect of the document. This may be problematic in cases when a speaker of a foreign language (and with no one to translate) is called upon to sign.