California Courts Uphold Express and Implied Assumption of Risk Defenses in Recreational Activity Cases
Selman Breitman Partner Elaine Fresch and Of Counsel Melanie Smith obtained summary judgment in a recent lawsuit in Riverside County Superior Court involving two co-participants in an organized endurance horseback riding event on the grounds that the suit was barred by the express and implied assumption of the risk defense.
Prior to the event, plaintiff executed two separate releases of liability that the event organizer required, including one in which she agreed that she would not make a claim against or sue any person connected with the ride. The event involved riding horseback over difficult terrain for either 50 or 100 miles. Plaintiff claimed that our client fell off his horse after another competitor's horse kicked him, and that the client's horse collided with plaintiff while she was dismounted. Plaintiff claimed approximately $4,000,000 in damages arising from injuries suffered in the accident.
Elaine, who is the Chair of the Equine Practice Group, and Melanie, who is a member of the Equine Practice Group, argued three separate theories to defeat the complaint: (1) the Agreement and Release signed by plaintiff released the client from any alleged negligent acts during the course of the horseback riding event; (2) primary assumption of the risk barred the plaintiff's claims; 3) plaintiff could not establish any facts to support a claim for gross negligence.
In granting the Motion for Summary Judgment in favor of our defendant client, the court held that, as a matter of law, the liability waivers Plaintiff signed did release a co-participant and, following the long line of primary assumption of cases starting with Knight v. Jewett (1992) 3 Cal.4th 296, the plaintiff's action was barred as the client's conduct was not reckless and did not increase the inherent risks of the sport (as plaintiff argued that the client's horse was too green to be ridden in the event and that the client was not able to ride the horse well enough to sufficiently control him).
Significantly, the court also found that plaintiff failed to present any evidence to create a triable issue of fact to support her claim for gross negligence and granted the motion in its entirety. Subsequent to entry of judgment in the defendant's favor, the court awarded the defense $31,918.34 in costs, including expert fees.
This case, along with two 2015 published appellate decisions, underscore the importance of a well-written release of liability in the context of recreational activities. As long as a waiver does not purport to release liability for future gross negligence, which is generally unenforceable as a matter of public policy (see, e.g., City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747), a release of liability for ordinary negligence can be, and often is, an important safeguard for organizers of and businesses involving recreational activities as well as for trainers/coaches.
For example, on January 27, 2015, the Fourth District issued its decision in Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, a case in which the plaintiffs' 17-year-old daughter Mia was competing in an equestrian (cross country) event, and the defendant was the riding coach/trainer. The horse struck a jump/hurdle during the event, Mia fell off her horse, and the horse fell on Mia, killing her. Her parents sued the trainer for wrongful death and negligent infliction of emotional distress, alleging that the trainer substantially increased the risk reasonably assumed by Mia by allowing her to ride a horse that "was unfit to ride because of prior falls and lack of practice" and concealing this condition.
In an earlier appeal, the Court of Appeal reversed an order granting summary judgment for the trainer. The case was then tried, and the trial court granted the trainer's motion for entry of judgment, relying, in part, on a release of liability entered into between the trainer and Mia about six months prior to Mia's death. On appeal, her parents argued that the release of liability was ambiguous and did not apply to their claims. The Court of Appeal disagreed, however, affirming the trial's court's judgment and characterizing a release of future liability as an express assumption of the risk that negates a defendant's duty of care. (Id. at 719.) The Court of Appeal held the release was enforceable and could be asserted by the trainer as a defense to the claims, and the trainer could therefore be liable only if Mia's death was caused by the trainer's gross negligence. The trial court concluded that the plaintiffs had failed to establish that the trainer was grossly negligent.
In affirming the judgment, the Court of Appeal held:
"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 releaser, be reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release." (Id. at 722, citing Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357-1358, internal quotation marks omitted.)
Similarly, on January 29, 2015, the Second District issued its decision in Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, in which the Court of Appeal enforced a release of liability in the context of the use of fitness center equipment. In that case, the plaintiff sued a fitness center after allegedly suffering an injury when a clip which attached a fitness machine handlebar to a cable failed. The trial court enforced a release of liability on summary judgment, and found the fitness center did not act with gross negligence. The Court of Appeal, in affirming the trial court's ruling, explained gross negligence as follows:
"Ordinary negligence consists of a failure to exercise reasonable care to protect others from harm, while gross negligence consists of a want of even scant care or an extreme departure from the ordinary standard of conduct…[G]ross negligence…connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results." (Id. at 637, internal citations and quotation marks omitted.)
On June 9, 2015, the Third District issued its decision in Jimenez v. 24 Hour Fitness USA, Inc. 2015 DJDAR 6334, holding that gross negligence is largely a factual inquiry, and that the question of whether a defendant's lack of care constitutes gross negligence is a triable issue of fact.
In Jimenez, the plaintiffs contended that 24 Hour Fitness acted with gross negligence when it set up a treadmill in a manner that violated the manufacturer's safety instructions when it placed the treadmill too close to another piece of equipment, resulting in severe head injuries after the plaintiff fell backwards while using the treadmill. Here, the court held that whether the violation of the manufacturer's safety standards amounted to gross negligence is a question that should be determined by the jury. Notably, however, the court did not enforce the release of liability signed by plaintiff, which was written in English, because the plaintiff did not speak or read English, and the person that obtained the waiver did not speak Spanish and did not call anyone that spoke Spanish to help the plaintiff read it before she signed it. Therefore, this case can be distinguished from most sports and recreation matters, which usually involve ordinary negligence, and where releases of liability are not obtained through fraud, deception, misrepresentation, duress, or undue influence. (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366.)
Although it is often said that releases of liability "are not worth the paper they're written on," that is simply not true in California. Indeed, these cases highlight the fact that a well-written release can be an effective shield against liability. A carefully crafted release can provide valuable protection to individuals and businesses alike, from co-participants, to coaches, trainers, and operators of recreational activities and more. They can be and have been enforced by the courts, and are an important tool in ensuring the endurance of recreational activities enjoyed by so many.
Additionally, courts continue to uphold the very important defense of implied assumption of risk and are willing to grant summary judgment on claims of gross negligence even though it cannot be expressly released. It is critical in defending sports and recreational activity cases to be aggressive and specific in discovery in order to move for summary judgment and potentially succeed on such a motion. While a victory at the summary judgment stage is preferable in these types of cases, as it obviates the need for an expensive trial, a waiver not enforced at the summary judgment stage can still be enforced at trial.
For more information and/or for a training seminar concerning these defenses please contact Elaine Fresch at firstname.lastname@example.org.
Selman Breitman provides this information for educational purposes. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case. This information should not be construed or relied on as legal advice or to create a lawyer-client relationship.