California “Release of Liability” Waiver – Is It Enforceable?

In California, release of liability waivers are enforceable contracts in which you assume the risk of injury for potentially dangerous activities. You may be required to sign a liability waiver as a condition of participating in activities that might otherwise lead to lawsuits, such as gym memberships and school sports.

However, these liability waivers only prevent you from suing companies for ordinary negligence. You can still sue for injuries that arise from the company’s:

• • gross negligence,
  • recklessness,
  • intentional torts, or
  • illegal acts.

The following bubble graph shows activities that often require you to sign a liability waiver beforehand:

To help you better understand California liability waiver agreements, our California personal injury lawyers discuss the following:

• 1. Do I have to sign a liability waiver?
• 2. What injuries are covered?
• 3. Ordinary vs. Gross Negligence
• 4. Are liability waivers enforceable?
• 5. Can a minor sign a liability waiver?
• 6. Should I sign a liability waiver?
• 7. Can I still file a personal injury claim?
• 8. How do I release my liability when I sell my car?
• Additional Reading

1. Do I have to sign a liability waiver?

Many California businesses require you to agree not to sue for injuries from sports activities and other potentially risky undertakings. Typically, liability waivers are not negotiable: You either sign them “as is” or you are not allowed to participate in the activity.

Liability waivers are typically called:

• “Waiver and Release of Liability,”
• “Waiver of Liability and Assumption of Risk Agreement,”
• “Hold Harmless Agreements,
• or something similar.

Note that the absence of a liability waiver does not automatically make a company liable for your injuries. Under California’s law on assumption of the risk, participating in a potentially risky activity (such as attending a baseball game) may automatically shift the burden of injury to you.

Businesses often overstate the possible hazards in their liability agreements; that makes them more effective in court against injured plaintiffs.

2. What injuries are covered?

A typical California liability waiver shields a business from all injuries, whether or not arising out of the activity. For instance, the document may include a:

• release of liability for improper maintenance of the premises,
• negligent hiring or retention of employees,
• slip-and-fall accidents, and
• other potential lawsuits not directly related to the activity.¹

In some cases, the contracts even limit liability while you are on the way to an event (such as a sports competition).

By signing a liability waiver, you are essentially agreeing not to sue unless someone affiliated with the business injures you:

• on purpose or
• as the result of gross negligence (as opposed to ordinary negligence).²

3. Ordinary vs. Gross Negligence

California law defines “negligence” (ordinary negligence) as the failure to use reasonable care to prevent harm to oneself or to others.³ Gross negligence, on the other hand, is generally defined as:

• The lack of any care, or
• An extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.⁴

Example: During a routine maintenance check at a California fitness center, a gym employee does not notice that a bolt on a piece of equipment is loose. This is most likely ordinary negligence. Though if the employee did not bother to conduct a scheduled inspection at all, a jury might decide that the failure was gross negligence due to lack of any care.

4. Are liability waivers enforceable?

Liability waivers are enforceable in California to the extent they immunize the defendant from ordinary negligence. Under California law, a liability waiver cannot excuse an injury caused by a defendant’s:

• gross negligence,
• recklessness, or
• intentionally wrongful act.

Basic contract principles apply to liability waivers. This means that liability waivers can be nullified if:

• they violate California law or federal law,
• the terms are “unconscionable” (unethical),
• the defendant used fraud, deception, or misrepresentation to get you to sign, or
• you signed under duress or undue influence.

Additionally, to be enforceable in California, a waiver of liability must be:

• clear,
• unambiguous, and
• explicit in expressing the parties’ intent.⁵

This means waivers printed in faint or small font or in an inconspicuous place (deep in a document, on the back of a page, etc.) are less likely to be held enforceable.

5. Can a minor sign a liability waiver?

Yes, as long as you or your child’s legal guardian also sign. In California, you can also sign a liability waiver on your child’s behalf.⁷

This makes California different from many other states. Elsewhere, minors generally lack the legal capacity to enter into valid and enforceable contracts.⁶

Go-kart operators typically require customers to sign a release of liability.

6. Should I sign a liability waiver?

We cannot advise you whether or not to sign a liability waiver in California. It is up to you to decide whether an activity is worth the risk of not being able to sue in the event of an injury.

We can, however, recommend certain precautions.

1. Ask to examine the premises and equipment before you sign. How the premises and equipment look can often tell you how on top of safety employees are. If the property does not seem well-maintained, consider taking your business elsewhere.

2. Do an internet search for lawsuits and safety violations. People with bad experiences often post on review sites such as Google or Yelp. Searching for the name of the business (or the type of business) along with key terms such as

• “safety,”
• “lawsuit,”
• “injury,” and/or
• “death”

can help you decide if a waiver seems to be overreaching.

3. Obey the business’ safety rules. Safety rules sometimes seem too long to read or too burdensome to follow. However, they are there for your protection. Plus, failing to obey the rules could be an excuse for a court to

• deny your injury claim or
• hold you partially responsible under California’s comparative fault law.

4. Ask whether an event organizer has accident insurance that covers participants. Some organizations purchase accident and liability insurance that covers participants. Ask to see the certificate of insurance to confirm that the policy is current and that the policy limits are sufficient.

5. Make sure your medical insurance is current. Event insurance may not be high enough to cover your injuries. A good medical insurance policy is the best way to be sure you can receive care for injuries, regardless of who is eventually held responsible.

7. Can I still file a personal injury claim?

Winning a negligence lawsuit in California can be difficult when you signed is a valid liability waiver. Remember, though, the waiver does not apply if the business committed gross negligence, recklessness, or an illegal or intentionally wrongful act.

Example: Mario goes to a stable and requests a gentle, docile horse. The clerk instead gives him one prone to bucking. The horse does buck Mario, who falls off and suffers a shoulder injury.

In his horseback riding injury lawsuit, Mario is likely to recover damages despite having signed a liability waiver. A company’s gross negligence cannot be absolved by a liability waiver.

We can hire expert witnesses like an accident reconstruction expert to prove a business acted with something more than ordinary negligence. We also rely on:

• eyewitness testimony,
• the business’ maintenance records and/or employee checklists, and
• any video or photographic evidence of the incident.

8. How do I release my liability when I sell my car?

In order to release yourself from liability when you sell/transfer your car, go to the California DMV website and complete the notice of transfer and release of liability (NRL) application. You will need to input:

• the new owner’s name and address,
• the license plate number,
• the last five digits of the VIN, and
• the odometer reading on the date of sale/transfer

The NRL form must be submitted to the DMV within five days of the sale/transfer.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Liability Waivers: Rethinking the Impact on Sports and Recreational Activities – Mississippi Sports Law Review.
• Waiver and Estoppel in Insurance Policy Litigation – Insurance Law Review.
• Opting Only in: Contractarians, Waiver of Liability Provisions, and the Race to the Bottom – Indiana Law Review.
• Contract’s Revenge: The Waiver Society and the Death of Tort – Cardozo Law Review.
• Enforcing Waivers in Products Liability – Virginia Law Review.

Legal References: