covediver
Contributor
Saw this article in the Salinas paper about waivers and "ordinary" negligence versus "gross" negligence. This thread seemed the logical place to put it looking at the possibilities, but I am not sure after reading Uncle Pug's intro. Moderator, please feel free to move it.
http://www.thecalifornian.com/apps/pbcs.dll/article?AID=/20070918/BUSINESS/709180330/1046
Article published Sep 18, 2007
Liability release no defense for firm's 'gross negligence'
By SUSAN K. BLITCH
Monterey County is renowned for its sports and recreational opportunities. From scuba diving to paragliding, many businesses offer residents and tourists alike the chance to partake in a variety of these types of activities.
Most businesses require customers pursuing adventure and sports activities to sign a release of liability form before they are allowed to engage in the activity.
In general, the releases are designed to protect the businesses from lawsuits when a customer is injured while engaging in the activity.
Action or adventure businesses need to be aware, however, that the California Supreme Court has ruled that a form that purports to release liability for "gross negligence," in the context of recreational or sports programs, is unenforceable.
In City of Santa Barbara v. Superior Court, the state Supreme Court examined a Santa Barbara release used by a city-run recreational camp for developmentally disabled children. The parents of a child attending the camp were required to sign a release purporting to release the city from liability for any negligent act related to participation in the camp.
A lawsuit ensued when a child attending the camp drowned. According to the facts in the reported case, the child had suffered a seizure some 45 minutes before entering the pool. A camp counselor sent another counselor to report the incident to a supervisor, but because the counselor did not hear back from the supervisor, she assumed it was safe for the child to swim.
The girl was fine the first time she entered the pool. However, the second time the girl dove into the pool, the counselor turned away for about 15 seconds. When the counselor turned back, she could not see the girl, looked for her for two to five minutes and then cleared the pool. At that point, the girl was found on the bottom of the pool.
The city of Santa Barbara sought dismissal of the lawsuit brought by the girl's parents because the parents had signed a form releasing the city from any negligent act.
But the California Supreme Court held that an issue remained as to whether the city employees' actions amounted to gross negligence. The court said "ordinary negligence" consists of failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.
"Gross negligence," however, is defined as a lack of even minimal care or an extreme departure from the ordinary standard of conduct.
The court held that in this case an agreement to release liability for gross negligence violated public policy and was unenforceable. Thus, the parents of the child could continue their wrongful death lawsuit.
It's important to note that the form signed by the parents was valid as far as releasing the city from actions based on ordinary negligence. The release was not valid against claims based on gross negligence.
The distinction is an important one, which is sure to be litigated further in release-from-liability cases.
Sports and recreation businesses should carefully review their release forms to ensure they adhere to current law. Businesses also need to take obvious steps to protect customer safety so as to avoid allegations of gross negligence.
http://www.thecalifornian.com/apps/pbcs.dll/article?AID=/20070918/BUSINESS/709180330/1046
Article published Sep 18, 2007
Liability release no defense for firm's 'gross negligence'
By SUSAN K. BLITCH
Monterey County is renowned for its sports and recreational opportunities. From scuba diving to paragliding, many businesses offer residents and tourists alike the chance to partake in a variety of these types of activities.
Most businesses require customers pursuing adventure and sports activities to sign a release of liability form before they are allowed to engage in the activity.
In general, the releases are designed to protect the businesses from lawsuits when a customer is injured while engaging in the activity.
Action or adventure businesses need to be aware, however, that the California Supreme Court has ruled that a form that purports to release liability for "gross negligence," in the context of recreational or sports programs, is unenforceable.
In City of Santa Barbara v. Superior Court, the state Supreme Court examined a Santa Barbara release used by a city-run recreational camp for developmentally disabled children. The parents of a child attending the camp were required to sign a release purporting to release the city from liability for any negligent act related to participation in the camp.
A lawsuit ensued when a child attending the camp drowned. According to the facts in the reported case, the child had suffered a seizure some 45 minutes before entering the pool. A camp counselor sent another counselor to report the incident to a supervisor, but because the counselor did not hear back from the supervisor, she assumed it was safe for the child to swim.
The girl was fine the first time she entered the pool. However, the second time the girl dove into the pool, the counselor turned away for about 15 seconds. When the counselor turned back, she could not see the girl, looked for her for two to five minutes and then cleared the pool. At that point, the girl was found on the bottom of the pool.
The city of Santa Barbara sought dismissal of the lawsuit brought by the girl's parents because the parents had signed a form releasing the city from any negligent act.
But the California Supreme Court held that an issue remained as to whether the city employees' actions amounted to gross negligence. The court said "ordinary negligence" consists of failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.
"Gross negligence," however, is defined as a lack of even minimal care or an extreme departure from the ordinary standard of conduct.
The court held that in this case an agreement to release liability for gross negligence violated public policy and was unenforceable. Thus, the parents of the child could continue their wrongful death lawsuit.
It's important to note that the form signed by the parents was valid as far as releasing the city from actions based on ordinary negligence. The release was not valid against claims based on gross negligence.
The distinction is an important one, which is sure to be litigated further in release-from-liability cases.
Sports and recreation businesses should carefully review their release forms to ensure they adhere to current law. Businesses also need to take obvious steps to protect customer safety so as to avoid allegations of gross negligence.
