By Doyice Cotten
Jerid Rosencrans (Rosencrans v. Dover Images, Ltd., 2011 Cal. App. LEXIS 177) arrived at the Starwest motocross track in his truck with his motorcycle in the truck’s bed. Jerid stopped his truck at the entrance booth at the Starwest facility where the employee in the booth gave Jerid a clipboard containing the waiver and said, “Here, just sign in,” or “Here, sign this.”
The document was titled, “Release and Waiver of Liability Assumption of Risk and Indemnity Agreement”, and consisted of nine paragraphs. Beneath the paragraphs were multiple horizontal lines on which entrants were to print and sign their names above the words “I have read this release.” On the Release, Jerid printed his name and signed his name over the words “I HAVE READ THIS RELEASE.” Jerid signed the Release within approximately 10 seconds of the document being handed to him. The total exchange at the entrance booth lasted approximately 30 seconds. He was not given a copy of the waiver.
After about 30 minutes, Jerid went up a ramp for a jump and fell, landing on the downslope of the ramp. This left him outside of the view of the other riders. Jerid was not hurt, and proceeded to stand and pick up his motorcycle. Approximately 30 seconds later, a motorcyclist on the track struck Jerid. Approximately 20 seconds after that collision, a second motorcyclist struck Jerid. Jerid sued, alleging that the collisions caused him to suffer “serious and severe injuries.”
Jerid’s initial fall took place near a “flagger” platform where a person employed as a “caution flagger” would typically stand. From the platform, a “caution flagger” can see riders who have fallen down, and can alert other riders so as to avoid a collision with the fallen rider. There was at least one caution flagger at the track when Jerid fell; however, at the time of the fall, the caution flagger was not on the platform near the location where Jerid fell.
Plaintiffs made a number of allegations, however the only one to be addressed here is whether Jerid freely entered into the waiver agreement (Click Here to read the entire case). Plaintiffs asserted the Release could be found to be unenforceable due to “fraud in execution” because:
(1) the Dover employee at the booth represented the document was a sign-in sheet;
(2) the Release was written in a small font;
(3) Dover never informed Jerid he was signing a release;
(4) Jerid did not know he was signing a release;
(5) the title of the document was obscured by the clipboard’s metal clip;
(6) Dover did not give Jerid a copy of the Release; and
(7) there was insufficient time for Jerid to read the Release while stopped at the entrance booth because about 10 vehicles were lined up behind him.
The court stated that “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, and that since mutual assent is lacking, the contract is void. The court went on to say that 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 court stated that the contract is void only if the plaintiff’s failure to discover the nature of the contract was due to negligence on the part of the defendant; here, however, the failure was due to the negligence of the plaintiff in failing to read the agreement. The court added that it is the plaintiff’s responsibility to read the agreement and that it is not reasonable to fail to read a contract – even if the defendant asserts that it is not necessary to read it. Reasonable diligence requires a party to read a contract before signing it.
Jerid testified that he can read English and that he attended college. Even though there were approximately 10 cars in line behind Jerid, he had the opportunity to read the terms of the agreement by reading it while in line or by moving his truck to the side. There is no indication that Jerid was forced to sign the Release or was denied an opportunity to read the Release before signing it. Consequently, the Release is not void due to “fraud in the execution.”
Risk Management Implications
From a risk management standpoint, there are a few obvious implications.
- Nationwide, the consistent rule is that failure to read the waiver is not an effective argument for voiding the effects of a waiver.
- Don’t make the mistake Dover did in giving the plaintiff some points to complain about. While in this case, the enforceability of the waiver was not affected, the writer has encountered cases in which waivers have failed because the defendant did not 1) allow sufficient time to read the waiver, 2) used a very small font, 3) referred to the waiver as a sign-in sheet, or 4) had the title of the document obscured on the clipboard.
- Always allow adequate time to read, provide satisfactory conditions for reading, and encourage the signer to read the document.
- Note for the Waiver Signer: Always read ANY agreement prior to signing. The court is going to enforce it WHETHER YOU HAVE READ IT OR NOT!
Photo Credit: Thanks to GOGO Visual’s Photostream (http://www.flickr.com/photos/gogovisual/)