In the state of California, a valid and standard liability agreement is not enough to protect yourself from an expensive liability lawsuit. Though the general rule remains that if a patron waives their right to sue and acknowledges awareness of an inherent risk involved, you may still find yourself in legal trouble.
According to California law, an enforceable waiver for gyms or recreational facilities is determined by public policy principles whose focus is to protect individuals from consequences of gross negligence. There is a two-step factor for considering the viability of a signed waiver: the legal principles of assumption of risk and the two main types of negligence.
Understanding The Assumptions of Risk Principle
Understanding the principle of assumption of risk can help you determine the viability of your premise liability agreement. Courts understand that there is an inherent and potential risk in any recreational activity that ‘cannot be eliminated without altering the activity’s fundamental nature, which is why waivers are essential.
Waiver law requires that the assumption of risk be expressly assumed in a participant agreement for a gym instead of an implied assumption. An express assumption of risk is where a person accepts the risk inherent in a situation through an oral or written agreement. Implied expression of risk is when a person agrees to participate in an activity after being aware of the risks involved.
To protect yourself from negligent claims, consider requiring that your clients and patrons sign an assumption of risk agreement. In an assumption of risk agreement or exculpatory clause, a plaintiff agrees in advance that the defendant will not be liable for the consequences of negligent conduct before taking part in a risky activity. The agreement also pertains to the plaintiff agreeing not to hold the defendant responsible for the consequences of engaging in inherently dangerous activity. As a business owner, it is good practice to ensure that the scope of your release covers the claim being asserted by the injured plaintiff for the release to be considered enforceable.
Difference Between Ordinary Negligence and Gross Negligence in California Law
Ordinary negligence is failing to use the level of care a regular person would use in a similar situation, often arising from careless mistakes and inattention. On the other hand, gross negligence is a deliberate and reckless disregard for the safety and reasonable treatment of others. According to case law, gross negligence implies a lack of care or instances of extreme departure from what a reasonable person under similar circumstances would do to prevent harm to oneself, others, or property damage. California law obligates gyms and sports facilities to act with the ordinary standard of care to avoid causing physical harm or wrongful death. Any personal injury lawsuits in the state of California will determine if the circumstances before the court concern ordinary negligence or gross negligence.
The case of City of Santa Barbara v. Superior Court (Janeway) (2007) DJDAR 10807 offers insights into how California courts handle enforceability issues. In this case, a 14-year-old physically challenged girl drowned while disabled children camp’s swimming pool camp. Among the precautions in the center was a one-on-one college attendant who had been the girl’s attendant while in middle school. The girl dove into the swimming pool while the attendant was distracted for a brief 15 seconds and was only spotted two to five minutes later when she surfaced unconscious.
The decedent’s mother sued, but the defendant claimed that the camp’s application contained a release of liability in the event of negligence. However, the court held that while the release was effective against the claim of ordinary negligence, it wasn’t enforceable against gross negligence for public interest reasons.
Instances When a Liability Waiver Will Not Hold for the State of California
A liability waiver should have an explicit assumption of risk, and courts will examine the facts of the case to ascertain that an injury is a result of ordinary negligence. Here is a breakdown of issues that may render your California liability waiver unenforceable according to state law:
- If the injured victim did not receive a copy of a signed waiver agreement
For most gyms, the membership agreement contains a release of liability waiver. The California Civil Code section 1812.82 and section 1812.91 provide that a liability waiver is invalid if the injured victim did not receive a copy of the contract upon signing.
- The injury caused is as a result of gross negligence
Like noted above, the court will take time to differentiate if your conduct amounts to ordinary gross negligence. In instances of gross negligence, courts will not enforce a sound waiver of liability.
- Violation of Statutory or regulatory requirements in the State of California resulting in injuries
If the harm suffered by the plaintiff is a result of a violation of statutory obligation State health and safety standards. In the case of Reoven Capri v. L.A. Fitness International [136 Cal. App. 4th 1078 (2006)], a health club member slipped and fell on the pool’s deck, causing an injury. The plaintiff discovered the fall because overgrown algae had blocked the pool deck drain, causing the area to be slippery. However, the facility sought a summary judgment, maintaining that the plaintiff had signed an indemnity agreement. The court of appeal held that the agreement was unenforceable because the facility was in contravention of a health and safety code that provided, ‘persons operating a public swimming pool must do so in a sanitary, healthful and safe manner.’ The plaintiff demonstrated that overgrown algae that caused his injury resulted from a contravention of safety standards and was not among the risks he assumed.
- If in violation of public policy, the court will not enforce a liability waiver
No court in California will enforce a waiver in circumstances in which the plaintiff suffered harm because the facility in question ignored public policy directives. Recreational facilities should be aware of all health and safety pronounced made by the respective government agencies to avoid infringement and legal exposure.
- Using ambiguous language will void a release agreement
According to case law, ambiguity arises when ‘the language used in the waiver may be applied more than one way.’ Courts have also distinguished between two types of ambiguity – latent and patent ambiguity. Patent ambiguity occurs when the language of a contract is uncertain ‘on the face of it,’ while latent ambiguity is in the uncertainty of the agreement emerges when additional information or insights reveals more than one interpretation. Courts require that release forms have clear, explicit terms describing the parties’ intent and interpret ambiguities against the drafter.
Courts also shun release forms hidden in long documents, among other provisions or documents making it hard for the plaintiff to find and interrogate. In the case of Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1232, the liability release clause for a health club membership was not conspicuous and was therefore declared unenforceable. The form was hidden in the membership agreement, having a similar font and size as the rest. Family Fitness Center did not preface the agreement with an appropriate title.
Within the context of the pandemic, a Covid 19 liability waiver that accords to the assertions provided in this article should provide sufficient immunity to your business. However, for the sake of public interest, a liability waiver cannot protect you from intentional acts of negligence.
There are three levels of consideration before a court can opt to enforce a liability waiver against a plaintiff. The first is the conduct of the defendant within the context of ordinary and gross negligence. Secondly, courts will ascertain that an injury to a plaintiff is not a result of a violation of existing statutory laws or public policy pronouncements. Lastly, the court will consider the language and format of your liability waiver.
With the LenzVU digital waiver, you can draft format a liability waiver that complies with the laws of California. Contact John Peters, our sales executive, by email at John@TributeKiosk.com or call 888-626-1355 option 1 for more information.
The tribute kiosk digital waiver will enable you to fulfill the following legal requirements:
- Provide evidence that your patrons signed and maintained a copy of the waiver form – LenzVU enables your patrons to digitally sign a liability waiver and send themselves a preferred digital platform, e.g., email.
- Appropriately format your waiver with a visible title and preferred font – With LenzVU, you can format waivers with a clear heading indicating that the form is a release of liability. You can also choose a font that enhances the readability of the document for the benefit of your patrons and opt to make bold and underline significant clauses in the agreement.
- On such essential clauses of your release form, LenzVU can enable you to require that your clients sign against such clauses as evidence of having read and understood the important terms.
LenzVU is available for free, and in addition to being an efficient waiver management technology, it captures business analytics data such as foot traffic, useful for data-backed decision making.
It is considered good practice to seek legal advice while drafting a premises liability.