Pre-Injury Liability Waivers in California
Likelihood of Enforcement: Strong
California courts have “concluded categorically that private agreements made in the recreational sports context releasing liability for future ordinary negligence do not implicate the public interest and therefore are not void as against public policy.” City of Santa Barbara v. Super. Ct. (Janeway), 41 Cal. 4th 747, 760 (2007). This overarching willingness to enforce pre-injury liability waivers is mitigated in two key ways. First, the injury complained of must fall within the clear and unambiguous terms of the waiver. “An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.” Benedek v. PLC Santa Monica, LLC, 104 Cal. App. 4th 1351, 1357 (2002). Second, “a release cannot absolve a party from liability for gross negligence.” Santa Barbara, supra, 750-751, 776-777. The distinction between ordinary and gross negligence “reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” Id. at 776 (quoting Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 871 (1941)).
Given that California is the state that produced the famous Tunkl v. Regents of the University of California, 60 Cal.2d 92 (Cal. 1963), the state’s general willingness to enforce pre-injury liability waivers is significant. Moreover, courts have consistently narrowed the scope of the ambiguity exception. The absence of the word “negligence” or “waiver” from a document is not enough for a plaintiff to demonstrate ambiguity: “If a release of all liability is given, the release applies to any negligence of the defendant. It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” Benedek, supra, 1357. Although the question of whether an act constitutes gross negligence, as opposed to ordinary negligence, would traditionally be left to the jury, judges retain the ability to dismiss complaints on the grounds of failure to state a claim of gross negligence. See, e.g. Grebing v. 24 Hour Fitness USA, Inc., 234 Cal.App.4th (2015); Decker v. City of Imperial Beach, 209 Cal. App. 3d 349 (1989)
Last updated: 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.