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Release of Liability and Assumption of Risk For Recreational Activities In California

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Often when a person signs up for a new recreational activity, he or she must agree to a waiver, release of liability, or some other contract that limits our rights vis-à-vis the other party.  If an accident occurs, a question often arises regarding the effect of these provisions.  In Anderson v. Fitness International, LLC, (2016) 4 Cal.App.5th 867, the California Court of Appeals addressed the question of the enforceability of a release entered into by a patron of a gymnasium.  The holding demonstrates that while such waivers may be effective for ordinary negligence, they are not for what is characterized as gross negligence.

In Anderson, the plaintiff signed a “release and waiver of liability and indemnity” that he later conceded barred an “ordinary” negligence cause of action against defendant.  (Id. at 870-871.)  After a workout, the plaintiff fell in the L.A. Fitness shower, breaking his arm.  (Id. at 871.)  The gym’s shower did not have precautionary measures such as handrails, shower mats, or friction strips to prevent the type of injury plaintiff suffered.  (Id.)  Moreover, the plaintiff fell at least twice before, and he had notified the L.A. Fitness employees at the front desk each time.  (Id.)  According to the plaintiff, he also notified L.A. Fitness about witnessing others fall in the shower, as well.  (Id.)  Plaintiff further claimed that the downward slope towards the shower drains, as well as the slippery tile floor were factors in causing his fall.  (Id.)  Thus, the plaintiff alleged that L.A. Fitness was on notice of the dangerous condition of the shower, and their failure to remedy was gross negligence.  (Id. at 871-872.)

In Anderson, the Court noted that people may contract for a release of liability “for ordinary future negligence so long as such contracts do not violate public policy.”  (Id. at 877.)    However, Anderson affirms that a release of future gross negligence is against public policy.  (Id. at 878.)  Anderson noted that the difference between negligence and gross negligence is a policy rule that harsher consequences should flow when negligence is aggravated.  (Id. at 878-879.)

Anderson noted that to demonstrate gross negligence, a plaintiff must have “facts showing either a want of even a scant care or an extreme departure from the ordinary standard of conduct.”  (Id. at 881; internal citations omitted.)  A defendant’s conduct that “substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk” is gross negligence.  Anderson held, however, that plaintiff failed to prove gross negligence under the facts of that case.  (Id. at 883-884.)

If a person has signed a release or assumption of risk, and is pursuing a personal injury claim, it is important that the release be carefully analyzed, and where appropriate, establish facts supporting a gross negligence claim.

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