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

California release of 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:

• Gym injuries,
• Rock climbing injuries,
• Sports car racing accidents, and
• School sports injuries.

These are also known as

• “assumption of the risk” agreements,
• “assumption of liability” contracts and
• similar names.

But whatever name they have been given, these contracts only shield companies from injuries arising out of ordinary negligence. Under California law, waivers of liability may not prevent people from suing for injuries resulting from

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

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

• 1. Do I have to sign a release of liability waiver?
• 2. What kinds of injuries can be covered by an assumption of risk agreement?
• 3. The difference between “ordinary negligence” and “gross negligence”
• 4. When is a liability waiver enforceable in California?
• 5. Can a minor child sign a liability waiver in California?
• 6. Should I sign a liability waiver?
• 7. How to prevail in a California injury case if you’ve contractually assumed a risk

1. Do I have to sign a release of liability waiver?

Many California businesses require their patrons to agree not to sue for injuries from sports activities and other potentially risky undertakings.

Before participating in the activity, the patron is asked to sign a document called

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

Typically these liability waivers are not negotiable. Patrons either sign them “as is” or they are not allowed to participate in the activity.

Note, however, that the absence of a liability waiver does not automatically make a company liable for a patron’s 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 the participant.

2. What kinds of injuries can be covered by an assumption of risk agreement?

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 purport to limit liability while a participant is on the way to an event (such as a sports competition).

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 negliglence (as opposed to ordinary negligence).²

3. The difference between “ordinary negligence” and “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. But if the employee didn’t 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. When is a liability waiver enforceable in California?

Liability waivers are enforceable in California solely to the extent they shift to the customer the risk of ordinary negligence.

Under California law, a liability waiver cannot excuse an injury caused by a defendant’s

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

Nor can the defendant avoid liability if the defendant has failed to comply with California or federal law.

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 child sign a liability waiver in California?

Yes, as long as a parent or legal guardian also signs. In California, a parent can also sign a liability waiver on his or her child’s behalf.⁷

This makes California different from many other states. Minors generally lack the legal capacity to enter into valid and enforceable contracts. As a result, the law generally allows children to disaffirm contracts they sign before they turn 18.⁶

But in California, a parent may sign a liability waiver / assumption of risk agreement and make it a legally enforceable contract.

6. Should I sign a liability waiver?

We can’t advise people whether or not to sign a liability waiver and assumption of the risk contract in California. It is up to each potential participant 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 before making a decision or after deciding to sign one:

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 who have had 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 overreaching.

3. Obey the business’ safety rules. Safety rules sometimes seem too long to read or too burdensome to follow. But they are there for your protection. And failing to obey the rules could be an excuse to deny an injury claim or to 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 establish what the policy limits are.

5. Make sure your medical insurance is current. Even better is to have current medical insurance with co-pays and a deductible you can afford. 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. How to prevail in a California injury case if you’ve contractually assumed a risk

Winning a California personal injury lawsuit can be difficult when there is a valid liability waiver / assumption of liability agreement.

But remember – if an owner, operator or employee committed gross negligence rather than ordinary negligence the waiver does not apply.

Example: Mario rents a horse for the afternoon from a riding club in San Diego. He signs a waiver of liability. He explains to the clerk that he hasn’t ridden in years, and requests a gentle, docile horse.

The clerk is very busy and just assigns Mario a horse at random. It turns out the horse is prone to running and bucking, and one that should be assigned only to an experienced rider. The horse does buck Mario, who falls off and suffers a shoulder injury.

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

A plaintiff can also win by proving that the injury resulted from recklessness or an illegal or intentionally wrongful act.

In some cases, this may require expert testimony — for instance, from an engineering or accident reconstruction expert. This is especially true in cases involving catastrophic injury or wrongful death in California.

But sometimes gross negligence can be established by witness testimony and the business’ maintenance records and/or employee checklists.

Videos and photographs can also show an insurance adjuster or jury how the injury happened and why it was the defendant’s fault.

Injured in California? Call us for help…

Most California businesses take care to ensure that their customers are not injured. But accidents still happen.

If you suffered an injury after signing a waiver of liability in California, we invite you to contact us for a free consultation.

Call us or complete the form on this page to speak to a lawyer.

We can also help if you were injured in Las Vegas need to know whether your liability waiver is enforceable in Nevada. In Colorado, see our page on release from liability waivers in Colorado law.

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