By Doyice Cotten
The first case was YMCA of Metropolitan Los Angeles v. Superior Court (1997 Cal. App. LEXIS 392) which upheld the enforceability of a liability waiver in a case arising from a fall by a healthy, 73-year-old woman at a YMCA senior program. The senior lady fell down the stairs after viewing a jewelry display.
She sought personal injury damages for the allegedly hazardous and negligent placement of the display tables near the edge of the steps. YMCA contended that the complaint was barred by the waiver of liability signed by plaintiff. The trial court ruled the waiver was invalid as against the public interest.
The appellate court found that the release did not have the coercive aspects of an adhesion contract, and social activity was not an essential service. The court stated that “no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk that the law would otherwise have placed upon the other party.” The court went on to say that the release was not against public policy; in fact, it benefited the public by enabling defendant to provide low-cost recreational activities, socializing, shopping, and meal programs to seniors without the risks and costs of litigation. The services provided by the YMCA were recreational activities and low cost meals.
In Shawa v. City of Fairfield (2013 Cal. App. Unpub. LEXIS 3220), Ragda Shawa was injured while participating in a program available for senior adults operated by the City of Fairfield. The program differs somewhat from that of the YMCA in that it provides comprehensive social and educational services to frail and isolated seniors, including social, physical and therapeutic activities. Adult day programs like Fairfield’s are licensed and regulated by the State Department of Social Services. The purpose of the Program was to give people like Shawa the opportunity to get out of their homes and interact with others. Shawa was placed in the program by her daughter, both of whom were aware the program did not provide medical care or treatment to its participants and did not provide any professional nursing care.
Shawa first fell in 2008, when she was in the bathroom by herself, after which employees were directed to accompany Shawa to the bathroom. In 2009, as she and an employee approached the bathroom stall, the employee left Shawa unattended while going ahead to open the door. Shawa fell, striking her head.
She sued Fairfield alleging negligence. Defendants were granted summary judgment based on a waiver of liability clause signed upon admission. On appeal, Shawa contends the waiver is unenforceable on public policy grounds or, alternatively, too ambiguous to be enforced. We agree with the former contention, and reverse the judgment.
Enforceability of the Waiver
In determining the enforceability of the waiver, the court relied on the California Supreme Court ruling in Tunkl v. Regents of University of California, (1963) 60 Cal.2d 92. Tunkl established six factors, some of which must be met, to determine if a waiver is against public policy. The factors were: 1) Is the type business generally considered to be suitable for public regulation?; 2) Is the business performing a service of great importance to the public??; 3) Is the businesss willing to perform this service for any generally any member of the public who seeks it?; 4) Does the business possess a decisive advantage of bargaining strength against any member of the public who seeks his services?; 5) Is the waiver a standardized adhesion contract of exculpation with no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence?; and 6) Is the signer placed under the control of the business, subject to the risk of carelessness by the seller or his agents?
The court observed that Tunkl does not invalidate releases of ordinary negligence for injuries arising from sports and recreational activity. Courts have upheld such releases reasoning that, although beneficial, sports and recreational activities are not services essential to the public and do not involve the public interest. Conversely, the court stated that waivers have been found unenforceable based on the Tunkl factors in the following illustrative cases involving a child care program, an auto repair shop, and escrow agents.
The trial court had relied primarily on YMCA of Metropolitan Los Angeles – a case involving recreational activities, socializing, shopping, and meals. This case differed in the services provided as well as other aspects. Returning to Tunkl, the court stated that a liability waiver may be found unenforceable on public policy grounds even if one or more of the factors identified in Tunkl is not present. In examining the factors, the court found that all or nearly all of the Tunkl factors did apply here. (For details on the reasoning of the court, the reader is referred to the case).
The court declared the waiver unenforceable, reversed the summary judgment ruling, and remanded the case to the trial court for further proceedings.
Risk Management Take-Aways
1) Note that this is a California case and California law. The law in other states may differ.
2) In California, the law seems to be that waivers are NOT enforceable for adult, health-care related entities that provide essential services for older persons with certain disabilities.
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