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Are Liability Waivers Enforceable In California?

Are Liability Waivers Enforceable In California?
Christian J. Amendt

Many factors contribute to California being a mecca for those looking for diversion. The state’s many amusements and theme parks, its association with the entertainment industry, its consistently moderate climate, and its unique geography allow it to offer any sort of activity you want. Yet yours and your family’s participation in many of the activities offered in the state may be contingent on you signing a liability waiver. The general assumption is that once you have signed a liability waiver, the party it protects is absolved of any responsibility for accidents that you or one of your family members may suffer. Yet is that really the case?

It was for many years in the state. A 2007 California Supreme Court ruling reversed that stance, however. In its decision, the court ruled that (in reference to release of liability agreements), “we hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.” What this means is that the protection afforded to a property owner or activity provider ends when that party demonstrates gross negligence.

What exactly is gross negligence? The court clarified this in its ruling. Ordinary negligence refers to a failure to exercise the caution that an otherwise reasonable person would in the same circumstances. An example might be if the staff at a climbing gym failed to notice that a safety harness was damaged. Though the gym staff was negligent, you signing a waiver would protect them if the harness failed and you were injured. Gross negligence is an extreme failure in those circumstances. In the aforementioned example, if the staff knew the harness was damaged yet continued to allow it to be used, that may be viewed as gross negligence.

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