Saturday, March 28, 2020

In the March 2017 issue of Plaintiff, Brian J. Malloy, with the Brandi Law Firm in San Francisco, explained how to overcome a liability waiver being a complete defense in a serious injury case.  Mr. Malloy handles product liability, personal injury, wrongful death, and mass torts cases.

When a defendant’s wrongdoing occurs in a recreational setting, a liability waiver is a defense.  A liability waiver is a contract.  A defendant in California asserting a waiver as a defense has the burden of proving its validity (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 780 fn. 58.).  Waivers are strictly construed against the drafting party (Cal. Civ. Code§ 1654).

The release needs to identify the parties, and meet the elements of a valid contract, including offer, acceptance, consideration, and no defenses to formation.  Defenses to formation include having the party charged sign the waiver.  There could be multiple defendants in a case.  When a defendant is not named in a release, the defendant may not use the waiver as a defense. 

To be effective, the waiver must be clear, unambiguous, and explicit in expressing the intent of the parties.  Ambiguity in the scope is construed against the drafter. Cal. Civ. Code § 1654.   Ambiguity exists when a party can identify an alternative, reasonable meaning in a writing. Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360. Ambiguities can be patent, from the face of the writing, or latent, based on extrinsic evidence.  (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1357).

Where the waiver purports to release a defendant from negligent conduct, the “negligence that results in injury . . . must be reasonably related to the object or purpose for which the release is given.” Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1305.  A waiver is not a defense when the defendant’s conduct is outside the ordinary activity or the defendant unreasonably increased the risks to plaintiff beyond the risks inherent in the activity.

A release may not waive grossly negligent actions.  This is scant care, and does not require an intent to do harm.  A person can be grossly negligent by acting or failing to act.  Gross negligence is conduct that departs from what a reasonably careful person would do in the same situation to prevent harm.


Read the article here.