An express release of liability is an effective defense to a claim of negligence in the sports and recreation context. For an express release of liability to be enforceable against a plaintiff, it must satisfy three requirements: (1) the release agreement must be clear, unambiguous, and explicit; (2) the injury-producing act must be reasonably related to the object or purpose for which plaintiff signed the release; and (3) the release cannot contravene public policy.
Release Must Be “Clear, Unambiguous, and Explicit”
While “a release need not achieve perfection; it need not mention every conceivable risk within its intended scope nor, indeed, the particular risk that caused plaintiff’s injury.” Leon v. Family Fitness Center, Inc. (1988) 61 Cal. App. 4th 1227, 1235.
When examining a release, it must be “clear, explicit, and comprehensible in itself and when considered and read in whole with the entire agreement.” Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal. App. 4th 62, 69. If an alternative, “semantically reasonable” meaning exists the release is ambiguous. Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1358. The threshold determination of whether a document contains ambiguities is subject to independent review. Paralift, Inc. v Superior Court (1993) 23 Cal. App. 4th 748, 754.
In Benedek v. PLC Santa Monica, LLC, supra, 104 Cal. App. 4th 1351, a release found to extend to the use of a defendant’s facilities was upheld. Plaintiff signed a waiver of liability as part of a membership agreement at a health club. The waiver of liability released the health club from liability for all personal injuries sustained by a member on the premises “whether using exercise equipment or not.” Id. at p. 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 p. 1361.
In Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal. App. 4th 62, the Court upheld the enforceability of a release in a health club membership application and barred plaintiff’s action for injuries plaintiff sustained after slipping on an exercise mat in an aerobics class. The clause in the release stated: “Accidents/Injury: The member agrees that all exercises and use of the fitness centers are undertaken by the member at the 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.” Id. at p. 65. The Court held this language was “clear, explicit, and comprehensible,” and therefore enforceable. Id. at p. 69.
However, in Zipusch v. LA Workout, Inc. (2007) 155 Cal. App. 4th 1481, the Court found the language in the release was ambiguous because the language did not unambiguously release LA Workout from its own language, and only applied to the negligence of “anyone else using LA Workout.”
Ambiguities may also be found where multiple releases contain conflicting language. Powers v. Superior Court (1987) 196 Cal. App.3d 318. A release may also be found unenforceable if buried in the middle of a lengthy document in small type. Leon v. Family Fitness Center, supra, 61 Cal.App.4th at pp. 1232-1233.
Reasonably Related to Object or Purpose
The act of negligence resulting in plaintiff’s injury must be reasonably related to the object or purpose for which the release was signed. In Leon, plaintiff joined a health club and signed an application for membership which contained a release and assumption of the risk provision. Id. at p.1227. Plaintiff sustained injuries when a sauna bench plaintiff was lying on collapsed. Id. The Court found the health club’s negligence was not reasonably related to the object or purpose of the release for which the release was given, namely injuries resulting from “participating in sports or exercise rather than from merely reclining on the facility’ furniture.” Id. at p. 1235.
In Sweat v. Big Time Auto Racing (2004) 117 Cal. App. 4th 1301, 1306-1308, a release signed by an auto racetrack guest in order to sit in the pit area did not apply to bar injuries caused by alleged construction defects that caused the bleachers to collapse. The release did not release the speedway “whether or not” a race activity was occurring. Id. at p. 1307. The Court held the object or purpose of the release was not to release the speedway from liability for injury from defectively constructed or maintained bleachers, but rather to release liability for injury resulting from the activity of auto racing. Id.
Although exculpatory clauses affecting the public interest are invalid, exculpatory agreements in the recreational sports context do not implicate the public interest. Benedek v. PLC Santa Monica, LLC, supra, 104 Cal.App.4th at pp. 1356–1357.
An express releaseof liability is a contract and subject to the rules of contract interpretation. The cases discussed in this article merely highlight some of the nuances in the language that can render a release enforceable or unenforceable. We therefore recommend you seek the advice of experienced counsel when drafting an enforceable express release of liability.
ABOUT THE AUTHOR: Eva Bonelli is a 2007 graduate from Thomas Jefferson School of Law. Ms. Bonelli has been with the firm for many years now and specializes in general liability defense, employment, and business litigation. Contact her at firstname.lastname@example.org
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