Signing Away All Your Rights? Not Always…
December 20, 2010
Many personal injury attorneys have been approached by a potential client who suffered a significant injury during an organized event or activity for which they were required to sign a waiver or release as a condition of participation. The viability of the potential client’s case is immediately called into question due to a likely express assumption of the risk defense based on the signed waiver of liability. However, a close examination of any such purported “release” is required to evaluate its legal effectiveness and ultimately make a proper assessment of the case.
What Does It Really Say?
The starting point in evaluating the validity of a “release” is looking at the language itself. For a release exculpating a tortfeasor from liability to be valid and enforceable, it must be “clear, unambiguous, and explicit in expressing the intent of the parties.” Paralift Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755. “An ambiguity exists when a party can identify an alternative, semantically reasonable candidate of meaning of a writing.” Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360. If an ambiguity exists as to the scope of the release, it should be construed against the drafter. See e.g. Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 518-519.
The intent and effect of the release must further be comprehensible “to an ordinary person untrained in the law.” Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal. App. 3d 309, 319. No magic language (including the word “negligence”) is required for an enforceable release, but it must unequivocally notify the releasor that it applies to the releasee’s misconduct. See e.g. Sanchez v. Ballys Total Fitness Corp. (1998) 68 Cal.App.4th 62, 66-67. A high degree of clarity and specificity is required for California courts to allow a release to relieve a party from liability for its own negligence (as opposed to the releasor’s own negligence). Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488.
The Cohen case arose out of a guided horse trail ride during which Plaintiff fell off of her horse and was injured. Id. at 1480. The trial court granted summary judgment in favor of the Defendant, finding that a Release signed by Plaintiff constituted an express waiver of liability (and that it was therefore unnecessary to inquire as the applicability of the doctrine of primary assumption of the risk). Id. The purported release contained the word “negligence” only one time (referring the participant/releasor) and then stated:
Therefore, I assume full responsibility for myself, including my minor children, for bodily injury, death and loss of personal property and expenses thereof as a result of those inherent risks and dangers and of my negligence in participating in this activity. Id.
The Court of Appeal reversed the trial court’s granting of summary judgment, finding that release was invalid and that summary judgment was not supported by the doctrine of primary assumption of the risk. Id. at 1480, 1499. In so holding, the Court noted “[n]othing in the Release clearly, unambiguously, and explicitly indicates that it applies to risks and dangers attributable to respondent’s negligence of that of an employee that may not be inherent in supervised recreational trial riding,” nor did it extend generally to the use of defendant’s facilities. Id. at 1489.
A release found to extend generally to the use of a defendant’s facilities was upheld in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, in which a health club member sustained injury while moving a television set. In Benedek the health club’s membership application contained language stating that the member “expressly waives any claim of liability- for personal/bodily injuries or damages- which occur to any (member)…while on the (defendant’s) premises, whether using exercise equipment or not.” Id. at 1354. This language was found to clearly and ambiguously release the defendant from any liability for injuries occurring on the defendant’s premises. Id. at 1361.
In Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th at 64-65, 69 the Court similarly upheld summary judgment for the Defendant and upheld the enforceability of a release in a health club membership application and precluded a Plaintiff’s action from proceeding for injuries she sustained after slipping on an exercise mat in a slide aerobics class. The language at issue in Sanchez stated:
“Accidents/Injury: The member agrees all exercises and use of the fitness centers are undertaken by the member at 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. Member agrees to indemnify and to hold the center and its employees harmless from all claims by or liability to member or member’s guest, except for those claims arising out of the center[‘]s knowingly failing to correct a dangerous situation brought to its attention.”
Again, the Court found the release language “clear, explicit and comprehensible” and therefore enforceable.
However, in Zipusch v. LA Workout, Inc. (2007)155 Cal.App.4th 1481, the Court found that a health club’s release language did not release it from its own negligence. Id. at 1290, 1293. The release language analyzed by the Zipusch court stated: “[Y]ou understand and voluntarily accept his risk [the inherent risk of using an exercise facility] and agree that LA Workout will not be liable for injury…from the negligence or other acts of anyone else using LA Workout.” Id. at 1289, FN 21. In reversing the lower court’s granting of summary judgment in favor of the defendant, the Court found the release language ambiguous, and therefore not a valid release, noting that the subject language did not unambiguously release LA Workout from it’s own negligence, as a reasonable, if not better interpretation of the release language was that it applied only to the negligence of “anyone else using LA Workout.” Id. at 1290, 1293.
Similarly in Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, a general release was found not to exculpate the defendant health club owner from Plaintiff’s claim for injuries sustained when a sauna bench collapsed due to the alleged negligence of the health club. Id. at 1230-1231, 1235. In addition to criticizing the conspicuousness and size of the release language (as discussed infra), the court reversed summary judgment in favor of the defendant health club as the purpose of the release related to “participating in sports or exercise rather than from merely reclining on the facility’s furniture.” Id. at 1235.
The scope of release language has also been carefully analyzed in the context of scuba diving. In Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, the Court reversed the trial court’s granting of summary judgment in favor of the Defendant in a wrongful death matter arising out of a scuba diving incident in which the Plaintiff ran out of oxygen. Id. at 1464-1465. In so doing, the Court held that the exculpatory language was limited to boat dives or multiple day rentals (neither of which applied to the facts of the case) due to the boldface underlined and larger size font title of the release language “Equipment rental agreement, liability release and assumption of risk of scuba and snorkel gear for boat dives or multiple day rentals” despite the broad language contained in the release following the title (i.e. “shall not be held liable or responsible in any way for any injury, death…as a result of…the negligence of any party.”). Id. at 1465-1464, 1467.
In the context of automobile racing, the court in Celli v. Sports Car club, Inc., supra, 29 Cal.App.3d 511, found unenforceable a release provision on a pit pass that purported to release defendants from liability for injuries “resulting from any accident or other occurrence,” while not explicitly stating that the defendants were released from liability for injuries caused by their own active negligence. A contrary result was reached in National & International Brotherhood of Street Racers, Inc. v. Superior Court, (1989) 215 Cal.App.3d 934, where the court precluded recovery for the plaintiff, an experienced race car driver, based on language in the release that was “unlimited in scope” and that released defendant and others “from any and all claims and liability arising out of…ordinary negligence of releasees or any other participant which causes the undersigned injury, death, damages or property damage.” Id. At 936, 937.
While by no means an exhaustive list or set of examples, these cases set forth a sampling of the nuances in language that can render a release unenforceable and demonstrate the clarity required for a written agreement to validly release a defendant from its own negligence.
Location, Location, Location (And Size)
The validity of a release can also depend on where the exculpatory language is contained within a document and how large the language appears. Consistent with common sense “an express release is not enforceable if it is not easily readable.” Leon v. Family Fitness Center (#107), supra, 61 Cal.App.4th 1227, 1232-1233, quoting Conservatorship of Link (1984) 158 Cal.App.3d 138, 141 (holding unenforceable release language that, among other things, was in only 8 point font, in undifferentiated type located in the middle of the document, without any physical characteristic distinguishing the exculpatory clause from the remainder of the document was insufficiently conspicuous.) “Typeface smaller than eight-point is an unsatisfactory reading medium.” Conservatorship of Link, 158 Cal.App.3d at 141 citing Mellinkoff, How to Make Contracts Illegible (1952-1953) 5 Stan.L.Rev.418, 419.
In Celli v. Sports Car Club, Inc. (1972) 29 Cal.App.3d 511, the Court upheld the lower court’s finding that release language on a pit pass was unenforceable, and explicitly discussed the size of the language in less than six point font noting that retail installment sales and parking lot contracts are required to be in at least eight-point type to be enforceable. Id. At 518; citing Civil Code ‘1803.1 and Civil Code ‘1630, respectively.
Based on these authorities, release language in less than 10 point font is of questionable validity, as is release language that is not sufficiently conspicuous, preferably in a separately titled subsection prominently placed within the document.
Conclusion
While many potential cases may at first glance present a seemingly insurmountable defense based on express assumption of the risk due to a written release, a thorough analysis of any purported “release” is required to evaluate its validity and applicability to the actions (or inactions) that actually caused the client harm. Because a release may be legally unenforceable based on the language of the release (limited scope, ambiguity, or incomprehensibility,) its location (lack of prominence) or even its type size (illegibility), it is imperative that you obtain any potential written release early on in your representation for a complete evaluation. Identifying unenforceable releases are one way to ensure that tortfeasors are not allowed to avoid responsibility and victims are fully and properly compensated for their injuries.
Have you been injured and wish to seek compensation for your expenses? Contact an Orange County personal injury lawyer today.