In many personal injury cases, the fact pattern begins with an injury that the plaintiff suffered through his or her participation at an event or some other recreational activity – renting a canoe from a riverside shop, attending a team sports event, or purchasing tickets to a night out at the local dancehall, for example – wherein the plaintiff was made to sign a waiver of liability, otherwise known as a release form.
Plaintiffs are often afraid of litigating a personal injury case involving a signed waiver of liability, as the commonly held belief is that a waiver of liability acts as an absolute bar to recovery. The reality is a bit more complicated, however. Whether a waiver of liability acts as a bar to recovery depends entirely on the language of the waiver itself and the unique circumstances of 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
Before we investigate liability waivers further, it is necessary to consider the effect of the assumption of risk doctrine – specifically, the doctrine of primary assumption of risk – which may shield the defendant from liability in certain circumstances, even without a valid waiver.
The doctrine of primary assumption of risk protects defendants in cases where the plaintiff’s voluntary involvement in an activity or event necessarily requires that the plaintiff bear the burden of any additional risks and potential hazards. To put it simply, the primary assumption of risk doctrine asserts that for certain activities there is a level of inherent risk that cannot be helped. The California Supreme Court in Nalwa v. Cedar Fair stated this rule elegantly, finding that the doctrine of primary assumption of risk applies to any and all activities “involving an inherent risk of injury to voluntary participants […] where the risk cannot be eliminated without altering the fundamental nature of the activity.”
Thus, even without a valid liability waiver, defendant-operators of activities and events that impose certain unavoidable risks are shielded from liability through the primary assumption of risk doctrine.
Examples of activities wherein the primary assumption of risk doctrine may work to shield the defendant from liability include:
Hiking up a rough, dirt path. If a plaintiff injures breaks his foot by tripping and falling while on the path, the defendant may be able to assert a defense based on the fact that hiking up a hill necessarily imposes some level of risk due to an uneven trail. Of course, it is worth noting that assumption of risk defense is also not an absolute bar to recovery. If the defendant acted in a grossly negligent or reckless manner such that the risk presented to the plaintiff was not one of the assumed risks (perhaps if the trail was built with a particularly dangerous design, and this danger was not known to hikers embarking on the trail), then the plaintiff may still be able to recover.
Playing sports in a league. Suppose that plaintiff, a college student, injures himself while playing in an intramural touch football league. There is a certain level of contact that can be expected, and there is therefore some level of risk that is assumed by players. Even just the fast pace of the game may result in injuries, some more serious than others. The defendant – the college in this case – would likely not be liable for reasonably foreseeable injuries that players suffer.
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; and 5) the scope of the waiver must cover the defendant’s conduct.
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.
Perhaps obviously, 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.
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 (and thus, acceptance of the waiver of liability) by virtue of fraud, deception, misrepresentation, duress, or undue influence. Suppose, for example, that 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 of a rollercoaster.
Failing to adhere to local building codes (fire, electrical, etc.).