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

In California, release of liability waivers are legally enforceable contracts in which you assume the risk of injury for engaging in potentially dangerous activities. You are often required to sign a liability waiver as a condition of participating in activities that might otherwise lead to lawsuits, such as:

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

Release of liability provisions are also known as

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

Whatever name they have been given, these contracts only shield companies from injuries arising from ordinary negligence. Under California law, waivers of liability may not prevent you 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:

• 1. Do I have to sign a release of liability waiver?
• 2. What kinds of injuries can be covered?
• 3. Ordinary vs Gross Negligence
• 4. When is a liability waiver 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 resources

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

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

Before participating in the activity, you are 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. You either sign them “as is” or you 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 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.

2. What kinds of injuries can be 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 purport to 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. 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?

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. 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

Though in California, you may

• sign a liability waiver / assumption of risk agreement and
• make it a legally enforceable contract.

6. Should I sign a liability waiver?

We cannot advise you whether or not to sign a liability waiver and assumption of the risk contract 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 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 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. Though they are there for your protection. Plus, 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 the policy limits.

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. Can I still file a personal injury claim?

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

However, 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.

You 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.

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.

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 resources

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.

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