According to Stanford Children’s Health, approximately 30 million children and teens participate in organized sports in the United States. Nearly one-half of Americans under the age of 18 are currently playing at least one organized sport.
Each year in the U.S., an estimated 1.35 million children are taken to hospital emergency rooms with a sports-related injury. Fractures, abrasions, sprains, concussions and knee injuries are high on the list of common complaints. Tragically brain and spinal cord injuries should never occur but they do and litigation always follows.
Schools, businesses, and organizations are not automatically liable for catastrophic injuries.
In most cases, participants or their parents have signed a waiver of liability which includes an agreement assuming the risk of the activity.
A release agreement, phrased in general language, cannot release a wrongdoer where, active negligence on the part of the defendants is the cause of the plaintiff’s injuries. The critical question in every case is whether the is release valid.
California requires a high degree of clarity and specificity in a release in order to relieve a party from liability for its own negligence. The release must “clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law that the intent and effect of the document is to release his claims for his own personal injuries as a result of the negligence of [the] defendants.” Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488.
If a release is ambiguous, and it is not clear that the parties contemplated redistributing the risk causing an injury, the purported release is void. Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288. Any ambiguity about the scope of a release is normally be construed against the drafter, as with other contracts. Solis v. Kirkwood Resort Company (2001) 94 Cal.App.4th 354, 360, Para/Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754; Celli v. Sports Car Club, Inc.(1972), 29 Cal.App.3d 511, 521.
Release agreements will not absolve a defendant from their negligence unless the express words specifically and clearly declare such a result. Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1306- 1307.
Whether or not a participant has assumed the risk of an activity has also been the subject of numerous lawsuits for personal injuries.
The legal doctrine of primary assumption of risk, first set forth in Knight v. Jewett (1992) 3 Cal. 4th 296, provides that there is no liability for careless conduct by co-participants. There is no duty to prevent such injuries because, “in the sports setting … conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.” The nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.”
Other cases hold that coaches and trainers must not increase the inherent risks and will be liable if they intentionally injure co-participants or “engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”
An activity is a “sport” if it is “done for enjoyment or thrill, requires physical exertion, as well as elements of skill, and involves a challenge containing a potential risk of injury.” Record v. Reason (1999) 73 Cal.App.4th 472,482.
In Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 797, the Court adopted the test from Record and added that “subsequent cases leads us to conclude “sport” entails some pitting of physical prowess (be it strength based [i.e., weight lifting], or skill based, [i.e., golf]) against another competitor or against some venue.”
Other cases where the Court found assumption of risk are: Knight v. Jewett (1992) 3 Cal. 4th 296 a tackle football game where a finger was injured; Regents of the University of California v. Superior Court (Roettgen) (1966) 41 Cal.App.4th 1040 falling is risk inherent in mountain/rock climbing; Saville v. Sierra College (2005) 133 Cal.App.4th 857 peace officer training class where participants throw each other to the ground while performing arrest and control techniques.
An express release is not enforceable if it is not easily readable. The operative language should be placed in a position which compels notice and must be distinguished from other sections of the document. Anyone should not be required to muddle through complex language to know that valuable, legal rights are being relinquished. An exculpatory or no liability clause is unenforceable if not distinguished from other sections, if printed in the same typeface as the remainder of the document, and if not likely to attract attention because it is placed in the middle of a document. In other words, a release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find.
In Leon v. Family Fitness Ctr. (No. 107), Inc., 61 Cal. App. 4th 1227, 1232 the Court invalidated the release because “ the release clause, although a separate paragraph, is in undifferentiated type located in the middle of a document. Although some other portions are printed in bold and in enlarged print, the releasing paragraph is not prefaced by a heading to alert the reader that it is an exculpatory release, contains no bold lettering, and is in the same smaller font size as is most of the document. No physical characteristic distinguishes the exculpatory clause from the remainder of the document. The document itself is titled “Club Membership Agreement (Retail Installment Contract)” giving no notice to the reader it includes a release or waiver of liability. Of particular relevance, there is no language to alert a reader that Family Fitness intended the release to exculpate it from claims based on its own negligence. Where such exculpation is sought, the release must contain specific words “clearly and explicitly expressing such intent.” Leon, supra, 61 Cal. App. 4th 1227, 1233.
There is no easy answer whether a coach, trainer, school or organization may be liable for a sports injury to a participant. It requires a careful study of the type of event, how the injury occurred and a detailed analysis of the terms of any release of liability and assumption of risk to support a lawsuit for serious injuries.
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