California offers some of the best outdoor recreational activities in the country thanks to our many mountains, lakes, rivers, parks, and swimming pools. Fun-loving and adventurous families and individuals are constantly signing up for activities like parachuting, white-water rafting, scuba diving, and summer camps that offer nearly every outdoor sport and thrill-seeking event imaginable.

While all of this adds up to great fun, many outdoor and certain indoor activities pose significant risks to child and adult safety. To protect themselves against legal liability, venue owners and sponsors often require adults to sign liability waivers. It’s their hope that if anyone is injured while pursuing activities they provide, they cannot be held legally liable for those injuries.

For many years, California courts favored business owners when deciding cases involving seriously injured plaintiffs who had signed liability waivers. If the waiver was deemed legally valid, alleged negligence often couldn’t keep a case alive – even if the plaintiff had died. That earlier interpretation of the law changed with the California Supreme Court’s 2007 ruling in the City of Santa Barbara v. Janeway, et al.

Before briefly analyzing the Janeway case facts and the rejection of the earlier legal approach to handling California waiver liability cases, we must review the differences between “ordinary negligence” and “gross negligence.” Today, when a court rules that evidence of the latter has been properly presented, a plaintiff’s case can move forward and fully succeed (if all other legal requirements have been met.)

In the Janeway case referenced above, the court notes that ordinary negligence (an unintentional tort) involves failing to exercise the basic standard of care that a reasonable person facing similar circumstances would honor. In contrast, gross negligence indicates that the defendant’s behavior represented an extreme failure to exercise what the governing law views as the proper or ordinary standard of care.

Of course, attorneys representing plaintiffs and defendants tend to view the state’s current handling of alleged negligence in waiver liability cases differently. Attorney Andrea J. Saltzman told the Los Angeles Times back in 2007 that she believes that once jurors hear a negligence case involving a plaintiff who was either seriously injured or died – they tend to presume gross negligence was present. She served as a defense attorney for the City of Santa Barbara in the Janeway case.

Katie Janeway was a 14-year-old girl who died while swimming at a children’s summer camp run by the City of Santa Barbara. She was one of a group of children there who had developmental disabilities. While the young girl was being monitored by camp employees, she slipped below the surface of the water and was soon found on the bottom of the pool. She died less than 24 hours later. Her tragic death caused her parents to file a lawsuit, claiming that all appropriate safety standards had not been fully honored. 

While most jurists sitting on the California Supreme Court bench favored the Janeway family’s view of the incident and ruled in their favor, one judge openly questioned whether the family properly limited the girl’s activities and provided the camp with adequate information regarding her cerebral palsy and ongoing tendency to suffer seizures.

The Janeway case now provides California’s governing legal standard for handling liability waiver cases involving parties who provide recreational opportunities to others. Even when they obtain valid, signed waivers from their customers or clients, venue owners can still be successfully sued – if the seriously injured plaintiff’s attorney presents adequate evidence indicating that the defendant venue owner was guilty of gross negligence.

When reviewing a case where someone has suffered serious injuries or died while taking part in a recreational activity often considered risky – and a waiver was signed – courts will carefully review the waiver to be sure it fully meets certain standards. Here are some of the problems they often look for and then evaluate.

• Overbroad or confusing language. It must be readily clear from reading the waiver what types of safety standards the venue owner is honoring and all terms used must be easily understood by an adult of average intelligence. The waiver cannot attempt to excuse unrelated claims that might arise from the activity;
• The waiver cannot be printed in an extremely small font. You cannot print up waivers that use such small font that few people can easily read them. After all, the average person preparing to take part in a sporting activity won’t be wearing reading glasses;
• The venue owner cannot obtain a waiver through any type of fraud, duress, or misrepresentation. You cannot simply hand the piece of paper to someone without clearly explaining that it’s a liability waiver form created to prevent the venue owner from being held liable for any possible injuries you or your child might sustain.

Courts will evaluate each individual waiver within the context of the commercial industry in which it’s being used. Of course, even if a waiver is found to be valid, some plaintiffs’ cases may still fail if the defendant’s lawyer can convince the court that gross negligence was not present and that the plaintiff fully assumed the risk in taking part in the activity in question.

Recreational venue owners nearly always allege in personal injury and wrongful death cases that they obtained a fully valid (signed) legal waiver from the customer – and that if the customer was seriously injured (or even died), the person had fully assumed the risk of their injuries when they signed the waiver form.

Assumption of the risk arguments in these cases basically rests on the claim that a defendant should never be held liable for reasonably foreseeable injuries. However, when gross negligence is deemed present, the foreseeability of a person’s injuries isn’t enough to fully protect a defendant from liability.

I’m Ed Smith, a Sacramento wrongful death lawyer. If you or someone you love was hurt or killed due to negligence, please give me a call today at 916.921.6400 or 800.404.5400 for free, friendly and compassionate advice.

I have worked as a California injury lawyer since 1982. I help those with wrongful death cases and/or traumatic injuries recover the fair and just compensation they deserve.

I created autoaccident.com, a site dedicated to providing helpful information about various types of personal injuries.

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