California: Personal Injury vs Liability Waivers

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California liability waivers are legally enforceable contracts in which people participating in potentially dangerous activities assume the risk of injury. Patrons are often required to sign a liability waiver in order to participate in activities that might otherwise lead to lawsuits such as renting a canoe, rock climbing, gym access or school sports. 

Liability waivers are also known as “assumption of the risk” agreements, “assumption of liability” contracts, “Release” forms and similar names. No matter the name given, these contracts only shield companies from injuries arising. Under California law, waivers of liability may not prevent people from suing for injuries resulting from gross negligence, recklessness, intentional torts or illegal acts.

Patrons are often afraid of taking a personal injury case to court involving a signed liability waiver, as it is commonly believed that a waiver acts in an absolute favor of the defendant. The reality of an absolute waiver depends entirely on the language of the waiver itself and the unique circumstances within the case.

In California, waivers of liability are generally enforceable so long as they have been drafted correctly, are explicit as to the scope of coverage, are legible and use high-visibility text, and do not illegally waive unknown or unrelated claims.

Assumption of Risk

A typical California liability waiver shields a business from all injuries, whether or not arising out of the activity.

Patrons should understand that by signing a liability waiver, they are essentially agreeing not to sue unless someone affiliated with the business injures them on purpose or as the result of gross negligence (as opposed to ordinary negligence). 

Liability Waivers – when are they invalid?

As the possibilities for the liability waiver structure are nearly endless, understanding the factors that influence an invalidity determination is key.

Liability waivers may be deemed invalid if: 

  1. The provisions of the agreement are unconscionable or illegal
  2. The language of the waiver is not clear, explicit, and comprehensible
  3. The waiver was obtained through fraud, deception, misrepresentation, duress, or undue influence
  4. The plaintiff’s injuries were caused by defendant’s grossly negligent or reckless conduct
  5. The scope of the waiver must cover the defendant’s conduct.

Unconscionable Provisions

Provisions in the waiver may be “unconscionable” under the law. A waiver is unconscionable if enforcement would be unethical. Generally speaking, the court will determine the unconscionability of the provisions of a liability waiver based on standards of ethics in the relevant commercial context, as well as on existing case law.

Clarity and Comprehension

A liability waiver may be deemed invalid if it is not clear, explicit, and comprehensible. A waiver that is written in a small font such that it is not clearly legible, or one that is written in language that is especially difficult or confusing, may be invalid under the law.

Scope

The scope of the waiver must cover the defendant’s relevant conduct if the defendant is to be shielded from liability. The waiver must not be too specific such that the defendant is not covered, but at the same time, if the waiver is too broad, then it may be unenforceable as written.

Deception

Defendants cannot take cover behind a liability waiver after having deceptively encouraged people to participate in an event or activity. The defendant may not induce participation by virtue of fraud, deception, misrepresentation, duress, or undue influence. For example, a defendant runs a rafting business. On the defendant’s website and in their other marketing materials, they have pictures and videos of a gentle rafting experience. There is no indication – textual or otherwise – that the rafting in fact takes place on whitewater rapids and thus present an additional risk of injury as compared to rafting on a quiet river. Suppose also that the marketing of the rafting company induces people to raft with the company, signing off on the waiver of liability. If a raft is overturned due to the intensity of the whitewater rapids and a participant hits their arm on a rock, injuring it, the defendant-operator cannot claim that the waiver of liability shields them from the ensuing personal injury lawsuit, as the defendant misrepresented the risks involved in the rafting experience to potential participants.

Gross Negligence and Recklessness

Though a waiver of liability will protect a defendant from a negligence lawsuit, the waiver can be invalidated if the plaintiff shows that the defendant engaged in grossly negligent or reckless conduct. To find that a defendant engaged in reckless or grossly negligent conduct, they must have willfully disregarded the safety of participants.

Examples of gross negligence include:

  • Renting out canoes that are outfitted with broken wood (and thus at risk of filling with water and capsizing).
  • Failing to conduct regular, industry-standard inspections.
  • Failing to adhere to local building codes (fire, electrical, etc.).

 

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