As many are aware, the California Supreme Court, in the context of releases from liability executed in favor of entities which provide recreational programs and services, ruled that an agreement to release a recreational entity and its employees from claims of "any negligent act or omission… or otherwise", while enforceable, did not bar claims for future gross negligence. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747 (claims of a mother of a 14 year old girl with developmental disabilities who drowned while attending a city's summer camp for developmentally disabled children not barred to the extent of claims for gross negligence even though valid release of liability existed). The crux of the ruling was that, while a release of liability in the context of recreational programs and services (which releases liability for future negligence) is enforceable, such a release does not bar claims for future gross negligence as that would violate public policy.
Therefore, while waivers of liability in the context of recreational activities insofar as future negligence claims are enforceable in California, a question exists as to whether a carve out for future gross negligence could effectively swallow the rule.
In that regard, in Anderson v. Fitness International, LLC (LA Fitness) Westlaw 6302109 ("Anderson"), the California Court of Appeal, Second District, shed further light on the ability of a defendant recreational entity to successfully enforce a release of liability. In Anderson, plaintiff in his early 60's, joined the LA Fitness health club in Glendale in late 2011 (owned and operated by Fitness International, LLC ("LA Fitness")). The plaintiff signed a standard release of liability ("Release"). In September 2012, plaintiff finished his exercise and went to take a shower. The shower room is a single large room with approximately 7 shower heads on the walls. The plaintiff fell in the shower room and snapped his humerus in two. The plaintiff claimed that he had fallen on two prior occasions and had notified LA Fitness staff each time. The plaintiff claimed that his falls occurred because the shower room tile had significant downward slanting slope toward the drains and that the drains were often layered and covered with body oil and soapy residue. No repair measures were made at any time before or after the September 2012 accident.
The plaintiff then filed a personal injury lawsuit against LA Fitness alleging gross negligence and negligence per se. After a demurrer and motion to strike which resulted in the striking of "conclusory allegations relating to "gross negligence", LA Fitness filed a Motion for Summary Judgment arguing that, while the release would not bar a negligence claim based on gross negligence, there was no extreme departure from the standard of care involving the shower room. The trial Court granted Summary Judgment.
Anderson then appealed arguing that he had presented evidence that LA Fitness had notice of the shower safety hazard and failed to mitigate it and that this alone was sufficient to create a triable issue of material fact regarding whether LA Fitness' actions and omissions constituted gross negligence. No expert testimony was presented by plaintiff. LA Fitness responded that it satisfied its burden of showing the Release barred any claim against it for ordinary negligence and that plaintiff failed to produce evidence demonstrating a triable issue of material fact that LA Fitness' conduct rose to the level of gross negligence.
The Court of Appeal affirmed. The Court of Appeal noted that there was no dispute that the Release was valid. The Court of Appeal further ruled that, since LA Fitness International had asserted the Release as a complete defense, LA Fitness needed only to produce evidence initially refuting the plaintiff's allegations constituting gross negligence – and had done so. The Court of Appeal went on further to rule that, with LA Fitness having met its initial burden, the burden to produce evidence creating a triable issue of material fact of gross negligence shifted to the plaintiff and further ruled that the claims of prior accidents were not sufficient to demonstrate an "extreme" departure from the standard of care which could constitute gross negligence.
Anderson demonstrates that, in the recreational context, releases of liability remain valid in California unless gross negligence is involved. Anderson further demonstrates that claims of gross negligence, in order to defeat a valid release of liability, should be based upon specific evidence demonstrating an extreme departure from the standard of care and expert testimony may be necessary to achieve that.
About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.
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