Articles

Avoiding Express Assumption of the Risk

Common Contract Defenses and Alternate Theories of Liability in California

A skillfully drafted release and waiver of liability is the most effective defense to a claim of ordinary negligence in the sports and recreation context. Plaintiffs, however, have options to defend against the enforcement of the contract that they signed. These defenses to the contract are variations on legal presumptions, favoring persons who are in an inferior bargaining position, which are intended to prevent unfairness, oppression, surprise, or generally unreasonable results in enforcing the contract. These defenses to the contract are discussed in Part I, below. Plaintiffs may also “plead around” the complete defense of express assumption of the risk by alleging causes of action other than negligence. These alternate causes of action are discussed in Part II.

Drafting Enforceable Sports and Recreation Waiver and Release Agreements

A written release and waiver of liability (an exculpatory agreement) is the most effective defense to a claim of negligence, and can bar a negligence claim altogether when it is drafted effectively. Like any contract, the legal rules of interpretation apply to an exculpatory agreement. California favors enforcement of exculpatory agreements to protect popular and lawful recreational activities but the substance of the agreement must be clear and unequivocal to be binding. The only California cases invalidating recreational exculpatory agreements have done so because of poor drafting techniques which resulted in an unclear and equivocal agreement.

Set forth herein is an overview of current drafting requirements developed in California case law, as well as other techniques for creating an effective and enforceable sports and recreation exculpatory agreement. Set forth in separate articles are (1) a review of the required contractual elements and other useful provisions for sports and recreation waiver and release agreements, and (2) an overview of plaintiffs’ defenses to and means of avoiding the application of a sports and recreation exculpatory agreements.

Formation of Sports and Recreation Waiver and Release Agreements in California

A written release and waiver of liability is a contract between the sports and/or recreation facility/business and its customer, and as such the legal elements required for contract formation must be included. Failure to create a contract will nullify the effect of the release and waiver. Failure to create an effective contract will make the contract vulnerable to attack in litigation. Set forth herein is an overview of current authorities regarding the required elements of contract formation as well as a discussion of other useful contract provisions.