If you are working out at the gym, exercise class, or engaging in a recreational activity such as various biking, skiing, scuba diving, motorsports, boating, parachuting, or other types of recreational activities that involve inherent dangers and risks, you will almost certainly sign an advance waiver of liability stating that you will not sue the company if you are injured while performing or engaging in the activity in question.

A Potential Plaintiff Promises Not To Sue For Future Harm By Signing A Waiver Of Liability.

Essentially, this eliminates a remedy for wrongdoing.  By an express assumption of risk, the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant's duty of care and acknowledging the possibility of negligent wrongdoing.   An express assumption goes further than a release, as it authorizes behavior. Knowledge of a particular risk is unnecessary when there is an express agreement to assume all risks. Plaintiff may undertake to assume all the risks of the particular situation whether they are known or unknown to him or her.  

Under Primary Assumption of the Risk, “the defendant owes no duty to protect Plaintiff from injuries which are ‘inherent’ in the sport.  Defendants still owe a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. ... There should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not ‘inherent.’

Signing a Waiver of Liability with JCS Law Firm

For example, a dirt bike rider fatally injured after riding in a park sued park owners for negligent maintenance of a trail.  The Release contained express assumption language, specific reference to negligence, and a signature block. The Court held that implicit in the knowledge that, “motorcycling is dangerous” is the knowledge that riding over rough, uneven terrain in an outdoor park poses a risk of injury by a fall, and his personal injury claims were barred and he was not able to bring a lawsuit. To be effective, a release need not achieve perfection.  “It suffices that a release be clear, unambiguous, and explicit and that an express agreement not to hold the released party liable for negligence.”

Exceptions To Liability Waivers When The Defendant Is Grossly Negligent

Everything short of gross negligence is covered by the release and a specific reference to “ordinary negligence” becomes unnecessary. ‘Gross negligence’ long has been defined in California and other jurisdictions as either a “‘want of even scant care” or “‘an extreme departure from the ordinary standard of conduct.’”A release does not operate to relieve the defendant of liability for gross negligence. Generally, it is a triable issue of fact whether a defendant's lack of care constitutes gross negligence. A liability release, "to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable."

Therefore, for someone to bring personal injury claims when they sign a waiver and release of liability, they will be required to prove “gross negligence” under California law.

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Joshua Cohen Slatkin
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Personal Injury & Employment Lawyer Serving Greater Los Angeles