Formation of Sports and Recreation Waiver and Release Agreements in California

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            A written release and waiver of liability is a contract between the sports and/or recreation facility 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.   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.  

A.	Name the Parties Released

            A contract should clearly identify the parties to the agreement. Include the client’s name in the release, not just a space for the client’s signature.   Most releases have a signature line but should also include a blank space where the client’s name may be printed and blanks for the client to initial key provisions.   Also, be sure to name all entities that are being released, including commercial sponsors, advertisers, the principal company along with its officers, principals, directors, shareholders, agents, employees, subcontractors, etc.). 1   Some agreements have a space for a witness to sign.  

B.	Customize the Agreement

            Specific language demonstrates agreement by the person signing the agreement. Include a blank space in the agreement not only for the parties’ names but also for the date and location of the activity, and any other specific information regarding the activity such as the names of any guides, specifics of a route taken/track used, identification of equipment used, etc. 2 This renders the Agreement less “adhesive”. However, do not include blank spaces for this customizing information if it will not be completed.

C.	Establish a Valuable Exchange (Consideration)

            “Consideration” is a required element in contract formation; it is the acknowledgment that each party to the contract gives something of value in exchange for the benefit received under the contract. For the client, it is the cost of the service provided. For the company, it is the client’s use of the sports or recreational service provided.   The agreement should express this consideration. The requirement is usually met by stating that “In consideration for the [service provided], client/participant agrees . . . .” 3

           In arguing the Allabach case, supra, before the court, we were impressed by the court’s concern for freedom to engage in recreational activity.

D.	Establish a Valuable Exchange (Consideration)

            Use all-inclusive language to describe the scope of the exculpatory agreement but add a clause “including but not limited to” the specific inherent risks of the particular sport/recreational activity.   Otherwise, you are leaving it up to the court to define the inherent risks of the sport/activity.   This is one way to discover the inherent risks in the litigation process.   For example, the same release was found valid in one case and invalid in another due to the judicial interpretations of the scope of the release.   In Okura, the plaintiff’s injuries resulted from loose debris on a bicycle racecourse, which the court found was a reasonably foreseeable hazard inherent in the sport that was therefore covered by the release agreement. 4    In Bennett, the plaintiff’s injuries were caused by a collision with an automobile on the racecourse which was not found to be a reasonably foreseeable hazard (not inherent in the sport) and therefore outside the scope of the release. 5  

            In obtaining a summary judgment on behalf of a cycling association, we were successful in arguing the extensive scope of known risks in high-speed cycling.

            The scope of the release should be sufficiently broad to cover the odd and unexpected incident as well as anticipated injuries.   In Leon v. Family Fitness Center (#107), Inc., a release did not protect a health club from liability for a collapsed sauna bench.   The court held that the purpose of the release was to protect the club from liability relating to members’ participation in sports, exercise, or fitness activities. 6    But in contrast in California, Saenz v. Whitewater Voyages, Inc. holds that a release was enforceable to bar the lawsuit of the parents of the (drowned) decedent although it did not expressly state the risk of death or drowning. 7

            Lastly, always include a release and waiver of “negligence.”   In Celli, the court found that the release was not effective to “absolve the defendants from the consequences of their own negligence as the express words used did not specifically and clearly declare this result.” 8

A.	An Indemnification Clause Will Make A Potential Litigant Think Twice Before Challenging a Proper Release

            An indemnification clause will deter a potential plaintiff from “testing” the validity of the Agreement with a lawsuit given that a loss will require him to pay defendant’s litigation costs.   An indemnification clause may also protect a defendant against lawsuits brought by third parties arising from plaintiff’s injuries. 9

B.	The Release Should Expressly Acknowledge the “Assumption of Risk” in the Activity

            A California court has held that a release need not anticipate the exact accident and injury if there is an express agreement to assume “all risk.” 10   A court may find that a particular risk is not “inherent” in a sports or recreational activity, however, and it is good practice to include an express statement that the risks inherent in the activity are assumed. 11

C.	Releases Should Determine How Potential Claims Are To Be Resolved; By Mediation or Arbitration or Otherwise

            Even despite a strong exculpatory agreement, a client can still bring a lawsuit in the hope that a company or its insurer will simply pay to avoid the cost of defense through summary judgment.   Therefore, an agreement should include language that establishes the venue in which a case may be brought, allows for attorneys’ fees for the prevailing party, allows severability for any provision found to be invalid while the remaining provisions remain enforceable, and requires that claims be submitted to alternative dispute resolution such as mediation or binding arbitration.

D.	The Release Should State That the Agreement Has Been Read and Understood

            Include language indicating that the client has read and understood agreement. 12

            Exculpatory agreements are subject to the rules of contract interpretation, and therefore the language of the agreement 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/release agreement fails to clearly and unequivocally express the parties’ intent. 13   For more details, please refer to the article regarding Effective Drafting Methods for Exculpatory Agreements.

            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 effective and binding formation of a 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.

            Drafting techniques to promote effective interpretation of an exculpatory (waiver and release) agreement are covered in a separate article.   Common defenses raised by plaintiffs and alternate theories of liability that may preclude the application of the defense of express assumption of the risk are covered in a separate article.

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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 Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1362-63; Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 348.)

2 See, e.g., Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 616; International and National Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 940.

3 Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 312; Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 348; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462; Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1487; Madison v. Superior Court (1988) 203 Cal.App.3d 589, 594, 603; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 616; International and National Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 940;   Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162-63; Allabach v. Santa Clara County Fair Association, Inc. (1996) 46 Cal.App.4th 1007, 1014-15; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1362-63; YMCA of Metropolitan Los Angeles v. Superior Court (Clark) (1997) 55 Cal.App.4th 22, 26 n.1.

4 Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1468-69.

5 Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1489.

6   Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227; Cf.Neumann v. Gloria Marshall Figure Salon (1986) 149 Ill.App.3d 824 (release specifically mentioned ‘injury while using any equipment”; Skotak v. Vic Tanny Int’l (1994) 203 Mich.App. 616 (negligent training of staff just as foreseeable as slipping and falling).

7   Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758

8 Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 521.  

9 See, e.g., YMCA of Metropolitan Los Angeles v. Superior Court (Clark) (1997) 55 Cal.App.4th 22, 26 n.1; Allabach v. Santa Clara County Fair Association, Inc. (1996) 46 Cal.App.4th 1007, 1014-15; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162-63; International and National Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 940; Madison v. Superior Court (1988) 203 Cal.App.3d 589, 594, 603; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 616.

10 Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1.

11 See, e.g., YMCA of Metropolitan Los Angeles v. Superior Court (Clark) (1997) 55 Cal.App.4th 22, 26 n.1; Allabach v. Santa Clara County Fair Association, Inc. (1996) 46 Cal.App.4th 1007, 1014-15; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1362-63; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162-63; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1755; Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 763 n.7; International and National Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 940; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 616; Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1487; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462; Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 348; Link v. National Association for Stock Car Auto Racing, Inc. (1984) 158 Cal.App.3d 138, 144 (release unenforceable for other reasons).

12 Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 348; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 616; Madison v. Superior Court (1988) 203 Cal.App.3d 589, 594, 603; International and National Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 940; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162-63; Allabach v. Santa Clara County Fair Association, Inc. (1996) 46 Cal.App.4th 1007, 1014-15; YMCA of Metropolitan Los Angeles v. Superior Court (Clark) (1997) 55 Cal.App.4th 22, 26 n.1.

13 Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485; Scroggs v. Coast Community College District (1987) 193 Cal.App.3d 1399; Link v. National Associate for Stock Car Auto Racing, Inc. (1984) 158 Cal.App.3d 138; Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309; Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511.

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.