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Drafting Enforceable Sports and Recreation Waiver and Release Agreements
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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.
I. Judicial Interpretation Authorities
No release is immune from attack. What follows below are some rules gleaned from a review of case law in California that directly addresses the issue of what constitutes a clear and unequivocal exculpatory agreement in the sports and recreation context.
“Drafters of releases always face the problem of steering between the Scylla of simplicity and the Charybdis of completeness. Apparently no release is immune from attack. If short and to the point, a release will be challenged as failing to mention the particular risk which caused a plaintiff's injury [citations] or as insufficiently comprehensive [citations]. It will be attacked as totally ineffective if a key word is placed in the caption for emphasis but not repeated in the text [citations], or if, despite unambiguous language, the word "negligence" is not used [citations]. If the drafter avoids these shortcomings by adding details and illustrations, the plaintiff invokes the doctrine expressio unius exclusio alterius est and characterizes the causative hazard as one not found among those listed in the release, but if the list ends with an inclusive term -- "and all other risks not specifically enumerated" -- it will be argued, under the principle ejusdem generis, that the risk encountered is nonetheless not assumed, because its nature is different from those listed. If the drafter strives to be comprehensive, the release is attacked as unduly lengthy [citations] but if he fits it onto a single page, the type size will be criticized as inadequate [citations] If the significance of the release is emphasized by its repetition in two documents, any variation in wording fuels a challenge.” 1
A. Use 8-Point or Larger Typeface. Many courts have expressed concern that smaller typeface, purposefully or otherwise, obscures the intent of the document. 2 As noted in Link, there are numerous California Civil Code sections which regulate typeface size in contract provisions, generally requiring 8 - 10 point type, often in boldface, with headings required in up to 16-point boldface capital letters. 3 But the Link rule is not absolute and California courts have held releases enforceable although printed in typeface smaller than eight-point. 4
B. Avoid Convoluted/Lengthy Verbiage. Many courts have expressed concern that the use of jargon, convoluted terminology, and/or lengthy verbiage, purposefully or otherwise, obscures the intent of the document. 5
C. Releasing Language Should be Conspicuous. “[T]he important operative language should be placed in a position which compels notice and must be distinguished from other sections of the documents.” 6 But, in another case, the releasing language located on the reverse page of agreement not “inconspicuous” given that both sides of form advise the signer to “read and sign” the agreement, and reverse side of Agreement has four short paragraphs, each emphasizing the “liability limiting”nature of the agreement. 7
D. Avoid Conflicting Provisions/Multiple Releases. If the significance of the release is emphasized by its repetition in two documents, any variation in wording fuels a challenge. 8
E. Expressly Release/Waive “Negligence.” Although California courts have validated releases/waivers that do not expressly specify release from “negligence”, 9 it is safe practice to include a specific release from “negligence”. 10
F. Avoid Legalese. Although certain legal terms such as “negligence” and “release” must inevitably be included for the sake of clarity, try to avoid unnecessary legal jargon as it causes, or creates the appearance of, confusion. 11
G. Prominently display the word “release.” Release invalidated in part because the word “release” (or its synonyms) only found in one location, in the title of the document. 12
II. General Principles of Exculpatory Contract Interpretation
| A. |
Court determines clarity of provision |
The determination of whether a written contract provision is clear and unambiguous is a question of law for the court, absent legitimate conflicting parol evidence. 13
| B. |
California’s Policy to Enforce Clear Exculpatory Agreements |
The rules of contract interpretation require a close reading of the terms and provisions of the contract. However, the courts have recognized the devastating cost of litigation and accordingly stated a policy of enforcement of clearly written exculpatory agreements to foster recreational activities. “In cases arising from hazardous recreational pursuits, to permit released claims to be brought to trial defeats the purpose for which releases are requested and given, regardless of which party ultimately wins the verdict. Defense costs are devastating. Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” 14 Accordingly, “to be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to combine the elegance of a trust indenture with the brevity of a stop sign. 15
| C. |
General Policy of Strict Construction Against Drafter |
The courts do not favor attempts to contract to absolve liability or secure exemption for one’s personal negligence, and construes such provisions strictly against the drafter. Accordingly, the drafter must select words and/or terms that clearly and explicitly express that this was the intent of the parties. 16
| D. |
General Policy of Strict Construction of Exculpatory Agreements |
An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties. 17
III. Conclusion
An exculpatory agreement, such as a waiver or release from liability, is a contract and subject to the rules of contract interpretation. Therefore the language of the contract is critical in determining its validity. The only California cases that have invalidated sports and recreation waiver or release agreements in negligence actions have done so on the ground that the waiver and/or release agreement fails to clearly and unequivocally express the parties’ intent.
This is a general summary and overview of the current state of the law. Changes occur from time to time in this specialized practice area. Experienced counsel should be consulted with regard to the drafting of an enforceable sports and recreation exculpatory agreement.
An appendix of release and waiver agreements published in California case law is attached hereto. Some of these agreements were found to be enforceable under the specific factual circumstances presented in the case, and some were not. PLEASE NOTE that different courts interpret contracts differently under different factual scenarios and that these agreements should serve as guideposts and references, and not as blueprints.
The required elements for contract formation, and other useful contractual provisions to be included in an exculpatory agreement, are the topic of a separate article. Common defenses raised by a plaintiff and alternate theories of liability against a business that may preclude the application of the defense of express assumption of the risk are covered in a separate article.
HOWIE & SMITH, L.L.P.
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San Mateo, CA 94401
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About Howie & Smith, LLP
Howie & Smith, LLP is a full service AV-rated firm providing effective and efficient civil litigation and legal counseling services to clients in a broad range of businesses with an emphasis on sports and recreation commercial enterprises and products.
Our practice includes trial and appellate advocacy, client counseling,and transactional services. The firm and its lawyers hold active memberships with the American Bar Association Product Liability and Torts and Insurance Practice sections, Association of Defense Counsel, the Defense Research Institute, local bar associations, and the San Mateo Chamber of Commerce.
Footnotes:
1 National and International Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 937-38.
2 Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511 (smaller than six-point type); Link v. National Associate for Stock Car Auto Racing, Inc. (1984) 158 Cal.App.3d 138, 141 (“the five-and-one-half-point print is so small that one would conclude defendants never intended it to be read).
3Civil Code sections 1630 [eight- to ten-point: parking lots]; 1677 [eight-point bold red or ten-point bold: liquidated damages provision in realty purchase contract]; 1803.1 and 1803.2 [eight- to fourteen-point: retail installment sales]; 1812.85 [ten-point bold: health studio services]; 1812.205 and 1812.209 [ten- to sixteen-point bold: seller assisted marketing plan]; 1812.302 and 1812.303 [ten-point bold: membership camping]; 1812.402 [ten-point: disability insurance]; 1861.8 [ten-point bold: innkeepers]; 1916.5 and 1916.7 [ten-point bold: loan of money]; 2924c [twelve- to fourteen-point bold: mortgage default notice]; 2982.5 and 2983.2 [eight- to ten-point bold: automobile sales finance]; 2985.8, 2986.2 and 2986.4 [six- to ten-point bold: vehicle leasing act]; 3052.5 [ten-point bold: service dealer lien].
4Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1489; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1468-69; McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031, 1033.)
5Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 319-20 (147 word sentence; “over half the length of the Gettysburg Address”); Link v. National Associate for Stock Car Auto Racing, Inc. (1984) 158 Cal.App.3d 138, 141 (193 word sentence; “the lengthy fine print seems calculated to conceal and not to warn the unwary”).
6 Link v. National Association for Stock Car Auto Racing, Inc. (1984) 158 Cal.App.3d 138, 142.
7Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1732.
8 Powers v. Superior Court (1987) 196 Cal.App.3d 318, 32; Link v. National Association for Stock Car Auto Racing, Inc. (1984) 158 Cal.App.3d 138, 143 (“use of two release agreements framed in different language created an ambiguous, confusing situation which must be resolved against the defendants.”) But cf.,Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1731-32 (provisions not found to conflict); Powers v. Superior Court (Hoffman) (1987) 196 Cal.App.3d 318 (differing language of two separate writings found not to conflict).
9Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758
10Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 519 (pit pass did not provide for release of defendant from its own negligence); Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597 (release included waiver of defendant’s “negligence” rendering it clear and unequivocal even if “assumption of risk” language not used) but cf. Scroggs v. Coast Community College District (1987) 193 Cal.App.3d 1399, 1404 (release not clear and unequivocal since it did not include language indicating decedent intended to assume all risk of the activity or a waiver of defendant’s negligence). See also, Heil Valley Ranch, Inc. v. Simkin (1989) 784 P.2d 781 (release does not have to use the word ‘negligence’ in order to be effective); Hine v. Dayton Speedway Corp. (1969) 20 OhioApp.2d 185, 252 N.E.2d 648 and Swartzentruber v. Wee-K Corp. (1997) Ohio App.4th, 1997 W.L. 28537 (need not use the word “negligence” when release encompasses all causes of action and released defendants from liability for all injuries); Zimmer v. Mitchell & Ness (1978) 385 A.2d 437 (PA).
11Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 319-20 (significance of “save harmless and keep indemnified” language could not be readily understood by a lay person).
12Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 319-20.
13 Allabach v. Santa Clara County Fair Association, Inc. (1996) 46 Cal.App.4th 1007,1013; Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 340; Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.
14 National and International Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.
15 National and International Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.
16 Sproul v. Cuddy (1955) 131 Cal.App.2d 85, 95 .
17 Randas v. YMCA of Metropolitan Los Angeles (1992) 17 Cal.App.4th 158,162; Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 226; Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 314-15, 317-18.
Sample Sports and Recreation Waivers (Appendix)
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About Howie & Smith, LLP
Howie & Smith, LLP is a full service AV-rated firm providing effective and efficient civil litigation and legal counseling services to clients in a broad range of businesses with an emphasis on sports and recreation commercial enterprises and products.
Our practice includes trial and appellate advocacy, client counseling,and transactional services. The firm and its lawyers hold active memberships with the American Bar Association Product Liability and Torts and Insurance Practice sections, Association of Defense Counsel, the Defense Research Institute, local bar associations, and the San Mateo Chamber of Commerce.
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