Many people are injured while engaged in recreational activities being hosted or operated by a commercial business. So many of these recreational activities pose significant risks and the commercial business putting on that event can often be liable for the person’s injury because the injury was caused by some negligent act on the part of the commercial business that increased the risk of the activity beyond what is inherent in the activity itself. However, in almost all cases, the commercial business that is putting on the event or hosting the activity will have participants sign a release of liability as a condition of participating in the activity. The releasing language in these forms is often buried in a multi-page document and, like most of us, the injured person did not set aside two hours to read the 10 page release from front to back before participating in the activity. Further, the release is often drafted in complicated legalese so that even if a person had set aside the time to fully read the release, it is not likely that the reader would have fully understood what they were signing.
I cannot tell you how many times I have had clients come to me with injuries from these activities and they believe there is nothing they can do because they signed a release. This is not the case. Many of these releases are poorly drafted and are therefore unenforceable. I have drafted the below article setting forth some of the legal rules governing the enforceability of releases in order to provide some information to those who may have signed one of these releases before being injured. However, in summary, please keep the following things in mind when evaluating the release that you may have signed. First, if the releasing language in the document is not clearly visible to the average person, and is not set aside from other language in the document (often by bolded, italicized, underlined, and larger type print than the text in the remainder of the document in order to compel notice) a court will likely not enforce the release. Second, if the title of the release does not clearly state that it is a “release of liability” or something akin thereto and, instead, has an innocuous title whereby you are not clearly advised by the title of the document that you are signing a release of liability, the release will not likely be enforced by a court. Lastly, if the release does not clearly and explicitly state that the release is releasing the commercial provider from its own negligence, the release will not likely be enforced by a court.
Below are some rules from various applicable cases in this area to keep in mind when evaluating the release that you may have signed. To be sure you can always take a copy and consult with a local personal injury attorney in Ontario.
“To be valid and enforceable, a written release purporting to exculpate a tortfeasor from damage claims based on its future negligence or misconduct must clearly, unambiguously, and explicitly express this specific intent of the subscribing parties.” (Leon v. Family Fitness Center (No. 107) Inc. (1998) 61 Cal.App.4th 1227, 1233). “[T]he language used must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releaser or indemnitor of the effect of signing the agreement.” (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755). “If an express agreement exempting the defendant from liability for his negligence is to be sustained, it must appear that its terms were brought home to the plaintiff; and if he did not know of the provision in his contract, and a reasonable person in his position would not have known it, it is not binding upon him, and the agreement fails for want of mutual assent.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App. 1476, 1488).
“An express release is not enforceable if it is not easily readable.” (Conservatorship of Estate of Link (1984) 158 Cal.App.3d 138, 141). “Furthermore, the important operative language should be placed in a position which compels notice and must be distinguished from other sections of the document. A [layperson] should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.” (Ibid. at 142). “An exculpatory clause is unenforceable if not distinguished from other sections, if printed in the same typeface as the remainder of the document, and if not likely to attract attention because it is placed in the middle of a document.” (Leon, supra, at 1232). “In other words, a release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find.” (Ibid.).
“California courts require a high degree of clarity and specificity in a Release in order to find that it relieves a party from liability for its own negligence.” (Cohen, supra, at 1488). “The presence of a clear and unequivocal waiver with specific reference to a defendant’s negligence is a distinct requirement where the defendant seeks to use the agreement to escape responsibility for the consequences of his negligence.” (Scroggs v. Coast Community College District (1987) 193 Cal.App.3d 1399, 1404). Further, it is “necessary that the act of negligence, which results in injury to the releaser, be reasonably related to the object or purpose for which the release is given.” [italics added] (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1357). Likewise, “[i]n order for [an] agreement to assume the risk to be effective, it must appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm.” [italics original] (Cohen, supra, at 1488).
“The determination of whether a release contains ambiguities is a matter of contractual construction.” (Cohen, supra, at 1485). “An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.” (Ibid.). “If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.” (Ibid.; Also see Leon, supra, at 1234 [“Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant.”]).
In Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.App.4th 1227 a patron of the Family Fitness Center signed a Club Membership Agreement in order to become a member of defendant’s gym. The membership agreement was a legal-length single sheet of paper with writing on the front and back. The front page of the agreement was divided into two columns, with the exculpatory clause located at the bottom of the left-hand column of the first page. Sometime after signing the Club Membership Agreement, the plaintiff sustained injuries when a sauna bench on which he was lying collapsed beneath him.
The exculpatory language in the Club Membership Agreement in Leon read as follows:
“Buyer is aware that participation in a sport or physical exercise may result in accidents or injury, and Buyer assumes the risk connected with the participation in a sport or exercise and represents that Member is in good health and suffers from no physical impairment which would limit their use of FFC’s facilities. Buyer acknowledges that FFC has not and will not render any medical services including medical diagnosis of Member’s physical condition. Buyer specifically agrees that FFC, its officers, employees and agents shall not be liable for any claim, demand, cause of action of any kind whatsoever for, or on account of death, personal injury, property damage or loss of any kind resulting from or related to Member’s use of the facilities or participation in any sport, exercise or activity within or without the club premises, and Buyer agrees to hold FFC harmless for same.”
Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.App.4th 1227, 1231.
The Leon court held that the release was unenforceable for several reasons, including that the Club Membership Agreement did not call the plaintiff’s attention to the exculpatory language. The Leon court held as follows:
“Here, the release clause, although a separate paragraph, is in undifferentiated type located in the middle of a document. Although some other portions are printed in bold and in enlarged print, the releasing paragraph is not prefaced by a heading to alert the reader that it is an exculpatory release, contains no bold lettering, and is in the same smaller font size as is most of the document. No physical characteristic distinguishes the exculpatory clause from the remainder of the document. The document itself is titled ‘Club Membership Agreement (Retail Installment Contract)’ giving no notice to the reader it includes a release or waiver of liability. Of particular relevance, there is no language to alert a reader that Family Fitness intended the release to exculpate it from claims based on its own negligence. Where such exculpation is sought, the release must contain specific words ‘clearly and explicitly expressing such intent.’”
Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.App.4th 1227, 1233.
The Leon court held that the release was also unenforceable “because, read as a whole, it does not clearly notify a customer of the effect of signing the agreement – it was not clear, unambiguous and explicit.” (Leon, supra, at 1235). On this issue, the Leon court held the following:
“The release begins with language that participation in a sport or physical exercise may result in accidents or injury, and buyer assumes the risk connected with the participation in such. The release is followed by a statement in large print and bold, capital letters: ‘MODERATION IS THE KEY TO A SUCCESSFUL FITNESS PROGRAM AND ALSO THE KEY TO PREVENTING INJURIES.’ Family Fitness placed the general waiver between these two statements which deal strictly with the risks inherent in an exercise or sports program without any mention that it was intended to insulate the proprietor from liability for injuries caused by its own negligence.
Reading the entire document leads to the inescapable conclusion the release does not clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law, such as Leon, that the intent and effect of the document is to release claims for his own personal injuries resulting from the enterprise’s own negligent acts … .”
Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.App.4th 1227, 1235.
In Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476 the plaintiff was injured when she fell from a horse during a trail ride provided to her by defendant. The ride was guided by an instructor who allowed his horse to gallop out in front of the participants’ horses that were following immediately behind the instructor’s horse. The horses that were following, including plaintiff’s horse, proceeded to gallop in response to the instructor’s horse and plaintiff was thrown from the horse, suffering injury. Plaintiff alleged that defendant had increased the risk beyond those inherent in trail riding by allowing his horse to gallop out in front of the other horses, where it was foreseeable that the other horses would follow.
Prior to going on the trail ride, plaintiff signed a document entitled “Visitor’s Acknowledgment of Risk” which advised of numerous risks of horse back riding, including the risk that a horse may “run and bolt uncontrollably.” (Cohen, supra, at 1486). The release agreement stated that plaintiff was agreeing “to assume responsibility for the risks identified herein and those risks not specifically identified.” (Cohen, supra, at 1486).
The Cohen court held that the list of risks in the release document were arguably only those inherent in horse back riding and that by stating that plaintiff was assuming the risks specifically enumerated in the release and “those risks not specifically identified”, it was not clear whether the defendant meant additional, non-enumerated risks inherent in horse back riding or negligence by one of its instructors that increased the risk beyond those inherent in horse back riding. (Cohen, supra, at 1487). Following the maxim that all ambiguities are interpreted strictly against the defendant as drafter, the Cohen court held that the plaintiff did not release the defendant from liability for injuries caused by defendant’s negligence that increased a risk inherent in horse back riding because the release did not explicitly state that plaintiff was assuming this risk. (Cohen, supra, at 1488). The Cohn court held as follows:
“A fair reading of the entire Release compels the conclusion that it does not make clear to an ordinary person untrained in the law that its purpose and effect is to release claims for one’s own personal injuries resulting from respondent’s negligent acts, including misconduct that increases a risk inherent in horseback riding. On the contrary, a person who understandingly signed the release cannot be deemed to have waived any hazard other than those inherent in the trail riding of horses. Stated differently, the Release does no more than subject appellant to a legal Principle–the doctrine of primary assumption of risk– that would apply even if the Release did not exist.” Cohen v. Five Brooks Stable (2008) 159 Cal.App. 1476, 1490.