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State's liability waiver law refined

High court says releases signed by participants or parents don't protect recreation providers in cases of gross negligence.

July 17, 2007|Maura Dolan and Ari B. Bloomekatz | Times Staff Writers

SAN FRANCISCO — Recreation providers in California may be held liable for gross negligence regardless of the wording on liability waivers signed by participants or their parents, the California Supreme Court ruled 6-1 Monday.

The state high court decision permits the parents of a developmentally disabled girl who drowned at a summer camp run by the city of Santa Barbara to sue even though her mother had signed an agreement assuming "full responsibility for risk of bodily injury, death or property damage."

California's recreation and sports industry had strongly urged the court to reject liability, warning that it could be the death knell for camps, fitness centers, hiking clubs and other providers of physical activity.

But Chief Justice Ronald M. George, who wrote the majority opinion, said there was no evidence that states with even more liberal rights to sue have lost recreational opportunities.

The ruling means that despite the wording on waivers parents routinely sign to permit their children to participate in sports and other activities, the providers can be held liable if an accident was caused by gross rather than ordinary negligence.

Ordinary negligence is the failure to provide care that any reasonable person would know was required. Gross negligence is defined as "want of even scant care" or "an extreme departure from the ordinary standard of conduct."

Lawyers on opposing sides of the Santa Barbara case agreed that Monday's ruling makes a major change in the law involving legal releases in California.

Even though people now can sue only for gross negligence, juries tend to assume that any accident that results in a serious injury or death must have involved gross negligence, said Andrea J. Saltzman, who represented Santa Barbara in the case.

Costs cited

Saltzman said that getting to a jury trial is costly and that defendants cannot recover their legal costs if they win. Even if the ruling does not lead to reduced opportunities for recreation, it will probably change the kind of recreation available, she said.

She cited a major hotel chain that had to pay a multimillion-dollar verdict for having a diving board that was considered too springy. Eventually, diving boards began to disappear from hotel pools, she said.

She also noted that fear of liability has made it difficult to find a commercial stable that allows a rider to rent a horse and ride alone instead of with a guide.

Michael L. Amaro, an attorney for fitness clubs who wrote arguments supporting Santa Barbara, predicted that insurance rates would rise for recreation providers, including companies that offer white-water rafting, parachuting and scuba diving. He said the court "framed the issues in a very broad manner."

Smaller companies, including skateboard parks, pools and dance studios, may be driven out of business because of greater liability, said Paul Tetreault, who represented stock-car groups in the case. He said the ruling will make it difficult to use the waivers to throw out frivolous lawsuits.

"The law until now has been very favorable to these business owners," Tetreault said.

But Barry Vigon, summer camp director at Pali Adventures, a summer camp that offers "extreme action adventure" in the San Bernardino Mountains, said he doubted the impact would be that severe for operators who focus on safety.

"In a camp, you're always waiting for the other shoe to drop," Vigon said. "Obviously, because we run some high-risk activities, the training is very specific about the safety of the children.... That is my main goal, for all intents and purposes, we're in the business of taking care of children, and we scrutinize every program."

Roland Wrinkle, the lawyer for the parents of the 14-year-old girl who died, said the decision will save lives.

"It is one of the unpleasant facts of life that children do die, and every time a child dies, it is an unmitigated tragedy," Wrinkle said. "What was different here was that it was wholly unnecessary ... and avoidable, and if the Supreme Court didn't do what they did, it would happen again."

Adventure Camp

Santa Barbara has provided extensive summer recreation for children, including a city-owned camp for children with developmental disabilities. Katie Janeway, who had cerebral palsy, epilepsy and other ailments, participated in that program, called Adventure Camp.

The camp was held from noon until 5 p.m. on weekdays for three weeks in July and August. It offered swimming, arts and crafts, sports, field trips and games.

In 2002, the camp required participants' parents to waive their right to sue the city for negligence if their children were injured.

She disclosed her daughter's medical problems and told the camp administrators that Katie was prone to epileptic seizures, often in water, and needed supervision while swimming, the court said. The camp staff was aware of Katie's problems because she had had a seizure at camp the previous year.

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