Liability Waiver Decision

Liability waiver forms are being used more and more to protect organizations from liability ( see our prior post here), but are not always effective and are under attack by the plaintiffs bar.  The California Supreme Court recently ruled that a liability release waiver was not enforceable in protecting a governmental entity from gross negligence, and only applies in ordinary negligence situations (see here & here).

The lawsuit involved the drowning of a developmentally disabled recreation program participant in a pool at a city summer camp in 2002, and the parents had signed a liability waiver form.  The Court ruled that liability waivers cannot protect a recreational program from the consequences of gross negligence.

This decision is clearly an issue for recreation and other organizations that use liability waiver forms in California.   A legal blog, Defending Sports Blog, ( see here) points out that this will open the door wider for plaintiffs attorneys:

As an immediate result of this ruling, one can expect that all lawsuits hereinafter filed relative to injuries suffered by participants in sports and recreation will include a cause of action for “gross negligence.” This decision clearly makes it easier for a plaintiff to create triable issues of material fact and defeat motions for summary judgment. More cases will inevitably proceed toward trial resulting in a high percentage of settlements and increased settlement value as the result of reduced leverage.

In addition, the blog points out that the ruling may void existing agreements that do not distinguish between ordinary negligence and gross negligence.