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When is a Written Release of Liability Enforceable?

As we discussed in previous posts, California law generally holds that a valid, written, signed release or liability waiver is effective, and that an injured plaintiff cannot subsequently sue a defendant if a release was signed relating to the activity that caused the injury. However, releases and liability waivers must be adequate and comply with certain legal requirements in order to create a proper and enforceable waiver of liability.

Let’s take a look at a few of the requirements for enforceable liability waivers in California.

LIABILITY WAIVERS MUST BE CLEAR AND UNAMBIGUOUS

The waiver must describe (or at least mention) the activity to which it relates, and must contain a “clear and unambiguous” waiver of liability.

“Clear and unambiguous” waivers need not describe all possible risks associated with the relevant activity. The waiver may be effective even if the actual injury suffered by the plaintiff (or the risk associated with it) was not specifically mentioned in the waiver and release, as long as the injury or negligence which caused the injury was foreseeably or reasonably related to the purpose for which the release was signed and the wording in the release.

Waivers and releases of liability are interpreted in accordance with the laws and interpretive rules governing contracts. This means ambiguities in a release are construed against the party who drafted the waiver (or on whose behalf it was drafted)–generally, the defendant.

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LIABILITY WAIVERS NORMALLY WON’T PROTECT AGAINST UNFORESEEABLE RISKS AND INJURIES

Although liability waivers can protect defendants against “foreseeable” or “anticipated” risks associated with a given event or activity, waivers and releases generally don’t protect against risks which neither party could reasonably anticipate or foresee in advance.

For example: a waiver of liability for student participation in a karate class may not protect the karate instructor from liability for injuries resulting from an armed intruder breaking into the karate studio (intending to rob it) and harming students in the process. This is particularly true if the studio is located in a relatively safe location and has had no similar troubles in the past. The owner would probably have liability here only if his or her actions negligently created a risk of such robberies, or if the owner otherwise failed to comply with a legal duty which resulted in the injuries–but the fact that the injuries occurred in the course of a robbery, rather than the karate class itself–would create at least an argument (though only facts and circumstances could determine if it was a winning one or not) that the student’s waiver did not apply to robbery-related injuries.

However, California courts evaluate foreseeability broadly, and tend to hold releases effective for negligent acts and injuries referenced in or reasonably related to the event or activity to which the release related.

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RELEASES GENERALLY DO NOT PROTECT AGAINST THE DEFENDANT’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE

Waivers of liability do not generally protect a defendant against willful misconduct or gross negligence, either by the defendant or by his or her employees. This is due to a public policy stating that the law should not allow people to waive or release others from liability for intentional or grossly wrongful acts.

“Gross negligence” refers to the failure to follow even minimal standards of care, and requires something more than ordinary negligence. “Willful misconduct” refers to deliberately wrongful or intentionally negligent behavior–like gross negligence, it requires something more than “accidental” negligence or overlooking a hazard.

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DISCLAIMER: This article is intended for informational purposes only, does not constitute legal advice to any person or entity, and does not create an attorney-client relationship with any person or entity. Negligence law and defenses are a complex legal topic, and no single article can provide complete or comprehensive coverage or information about this or any other legal topic or issue. Your personal liability may differ, based on your individual facts and circumstances. If you believe you have a legal claim or issue, or wish to know more about your individual rights, consult an experienced attorney without delay.

By Robert Ross | Posted on October 21, 2015 Tags: L.A. County attorneys, negligence, plaintiff's attorneys, releases of liability, waivers
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