Waiver News - Cali Supreme Court says Waivers Don't Work for Gross Negligence

[lawrocket 3]

Santa Barbara v. Super. Ct., California Supreme Court Case No. S141643. http://www.courtinfo.ca.gov/opinions/documents/S141643.PDF

"we hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable."

This is a case of first impression in California. It is pretty well-known that negligence can be waived. In California, that's the reason for the waivers. However, the California Supreme Court has now stated that to the extent that a waiver waives "gross negligence" such a waiver in unenforceable in law and void as against public policy.

In California, "“Ordinary negligence” — an unintentional tort — consists of a 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” long has been defined in California and other jurisdictions as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.”

This does not invalidate prior cases, such as Hulsey v. Elsinore, where the waiver of ordinary negligence was upheld. But it says that "gross negligence" cannot be waived.

The practical effect, in my opinion, is that the case creates an additional barrier to quick resolution of cases. Normally, a case by an injured parachutist against a skydiving center can be resolved in the initial stages due to the waiver (initial stages may be 2-12 months). However, now, if the Plaintiff in the case alleges gross negligence, it is a string upon which a plaintiff's case may hang.

The Court says that this is the rule in the "vast majority" of states, listing cases from Michigan, Massachussetts, Maryland, Nebraska, Hawaii, Wisconsin, New York, Tennessee and Georgia.

I suspect that there may be a change in the law that was viewed here. The legislature will face tremendous pressures, since amicus briefs were filed by the League of California Cities and California State Association of Counties, the California Park & Recreation Society, the Sierra Club, International Health, Racquet and Sportsclub Association, Bally Total Fitness and 24 Hour Fitness, and even NASCAR!

Note that all of these groups are those who offer recreational activities for which certain dangers exist. A person who is a guest in the pits of a NASCAR event can get hit by an out-of-control race car, and the waiver may be no good. A crew member may leave an oil slick or catch the guest on fire. Waivers may not allow this to happen. Or some idiot trying to squat 700 pounds may end up dropping the weights through the floor, injuring people below. It might be grossly negligent for the staff to have allowed that idiot to try the lift.

This will be interesting, to say the least. The ramifications of this case may not be over.

My wife is hotter than your wife.

[gemini 0]

Is this really new?

In Texas gross negligence was always the way out for a plantiff who had signed a waiver. It just took longer and was more expensive.

In the CA case, the waiver included a gross negligence provision that was an attempt to include gross negligence in said waiver. I thought that was what the court was addressing.

Not a lawyer so flame away....

Blue skies,

Jim

[tkhayes 146]

I thought that was the case in all laws across all states anyway.

negligence yes, 'gross negligence', no.

I assume that in every injury or death case, the plaintiff hopes to prove gross negligence in order to nullify the waiver.

This is not new news, I alwasy assumed that this was the case.

That is why you always operate your dropzone within specific rules and guidelines, however loosely written or defined. At least then you can say we followed this set of guidelines, USPA, CSPA, whatever.

Even so, i think it takes a lot to prove gross negligence anyway.

TK

[kelpdiver 2]

have a solution in mind?

Gross negligence shouldn't be defendable by a waiver. You can't have a valid contract when one party doesn't act in good faith.

How to avoid lawsuits progressing further than they should, I don't know.

As a result of incidents, the Sierra Club trips no longer use ropes or ice axes. Been true for quite a while, actually. Definitely not a good thing.

[lawrocket 3]

Quote

Is this really new?

It isn't really "new" - it's one of those things that's been out there for a while and pretty well aceepted as the way things are. However, it has never been SAID here in Cali.

The problem is that the law has developed in ways that make certain things acceptable and certain things unacceptable on a case-by-case basis. Since California considers certain activities to be things that waivers are allowable, then it could be read that, "Why not make all negligence waivable?"

The other issue is that the Court was dealing with an issue of statutory construction. California Civil Code section 1668 provides that contracts having for
their object, either directly or indirectly, the exemption of a party from “responsibility for his own fraud, . . . willful injury to the person or property of another, or violation of law,” are “against the policy of the law.”

"Put otherwise, one cannot lawfully contract away responsibility and future liability for his or her own acts of fraud, willful torts, or transgressions of statutory law. Section 1668, unchanged for 135 years and long understood to govern contractual releases of liability, neither declares nor prohibits releases of future liability for any type of negligence as being against the policy of the law in California."

So, what the dissent said, and I agree, is that the Court rewote the statute to find a limit that isn't in the statute! The statute says only say that you cannot have a person waive intentional torts or violations of the law. The Court just amended the statute to include "gross negligence."

Common law has typically held stuff like this. But this isn't common law - this is a statute. And if the legislature says, "You can't do X, Y or Z" then the courts should not be saying, "The list should have also included AA and BB." That's legislating from the bench.

The dissent pegged it.

My wife is hotter than your wife.

[gemini 0]

Thanks for the reply, but that's a whole lot of lawyerspeak for "you can't waive gross negligence in a contract."

If it is not the legislature's intent, the legislature can be more specific next time.

I agree that the courts should not legislate from the bench though.

Blue skies,

Jim

[Andy9o8 0]

You're both right. It's pretty much just an affirmation of old news.

[Squeak 17]

Quote

In the CA case, the waiver included a gross negligence provision that was an attempt to include gross negligence in said waiver. I thought that was what the court was addressing.

Not a lawyer so flame away....

Gross negligence should never be waiverable

You are not now, nor will you ever be, good enough to not die in this sport (Sparky)
My Life ROCKS!
How's yours doing?

[itllclear 1]

Will this decision affect the "indemnity" provision in many of the "waivers" now in use that says if the party alleging the injury files suit, the plaintiff will pay to each named defendant $X in liquidated damages?

Correct me if I'm wrong, but usually a claim of "gross neglegence' would require that the plaintiff clearly state in the complaint the act that constituted gross negligence. Only after the plaintiff could show, as a matter of law, that the specific act would be gross negligence, could the case proceed to a trial on the facts.

The lack of deep pockets, and the possibility of having to pay the indemnification, will deter many of the contingency lawyers from investing the time and money to go after a DZ.

"Harry, why did you land all the way out there? Nobody else landed out there."

"Your statement answered your question."