Waivers, Negligence per se, and Safety Statutes

By Doyice J. Cotten

In January of this year, we posted an article that dealt with waivers and negligence per se.  This article, which originally appeared in Fitness Management magazine, also relates to negligence per se.

Reoven Capri suffered injury when he slipped and fell on the pool deck while walking to the pool.  He returned to the pool the next day and found an accumulation of algae around the drain on the pool deck where he fell.  He filed suit against L.A. Fitness International alleging that the club was both negligent and negligent per se (a form of negligence which results from the violation of a statute; conduct which may be treated as negligence without argument or proof as to the particular circumstances [Black’s Law Dictionary, 1990]). The claim alleging negligence failed because the plaintiff had signed a waiver releasing the club from liability for negligence; however, the claim of negligence per se was not barred by the waiver. (Capri v. L.A. Fitness International, 2006 Cal. App. LEXIS 201)

California Safety Code section 116040 states that “Every person operating or maintaining a public swimming pool must do so in a sanitary, healthful and safe manner.” Further, Safety Code section 116043 provides that “Every public swimming pool, including swimming pool structure, appurtenances, operation, … measures to insure safety of bathers, and measures to insure personal cleanliness of bathers shall be  such that the public  swimming pool is at all times sanitary, healthful, and safe.”  These statutes are a part of a regulatory scheme for pool safety and set out standards for swimming pool sanitation and safety. Section 116065 states “Every person who violates any provision of this article … is guilty of a misdemeanor, punishable by a fine … or imprisonment … or both.”

The appellate court found the trial court erred in granting summary judgment to the defendant on the negligence per se claim, reversed that action since the waiver was not enforceable, and sent the case back to the trial court to determine if the club had been negligent per se.

The club claimed that even if the waiver was not enforceable, they were protected because the plaintiff had assumed the risk of the activity.  The court held that since there was an allegation of a violation of the law, assumption of risk was precluded.

As a general rule, persons have a duty to use due care to avoid injury to others and may be held liable for careless conduct that injures another party. (Civ. Code, 1714).  Thus, a club is required to use due care to eliminate dangerous conditions on its property.  In sport or recreation settings, however, otherwise dangerous conditions are sometimes an integral part of the activity so there is no duty to eliminate them.  The nature of the activity is important in determining the duty of the provider.  In general, providers do not have a duty to eliminate inherent risks, but they do have a duty to use due care not to increase the risks of the activity. In this case, the club had a duty not to increase the risks of swimming by allowing the deck to become slippery with algae – which is not an inherent risk in swimming.

Risk Management Principles

1.      Regular, effective maintenance is necessary to maintain a safe environment. This includes everything from maintaining clean floors and equipment to picking up trash and litter; from regular inspection of equipment to repair or removal of hazards.  The failure of L.A. Fitness to properly maintain the pool deck may well result in a large judgment against them.

2.      Remember that while waivers can provide significant liability protection (in this case, L.A. Fitness was found not liable for ordinary negligence), there are also many limitations to waivers.  Waivers will fail in a case like this where a law was violated.  Other limitations include: 1) when the participant is a minor (in many, or most, states, waivers signed for parents on behalf of minors are not valid), 2) when the signer is under the influence of alcohol, 3) when strict liability is involved, and 4) when a non-signing spouse files a claim for loss due to an injury to the signing spouse (in many states).

Photo Credit: Thanks to Haven Holidays (http://www.flickr.com/photos/[email protected]/2368465557/sizes/l/)