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Quote of the Day - From the viewpoint of mass tort law firms, this is a gift from heaven: a huge number of people who have suffered terrible losses ... - Donald Light
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Law School Casebooks To Be Rewritten Given This New Opinion Striking Waivers of Gross Negligence

Waivers of acts of sports-related gross negligence are no longer enforceable, as a sharply divided California Supreme Court held today, upholding an equally sharply divided lower court opinion.  The Court ruled, "an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy."

The opinion is considered by some as a tour de force of Chief Justice Ronald George's writing, and well worth a detailed read, and likely sets a new benchmark in tort opinions across the country.

In other words, that waiver you signed may excuse a negligent act, but it won't work to protect gross negligence.  It's a matter of degree, and largely dependent not only on the sport, but also the injury that occurs.

In the case of Janeway v. City of Santa Barbara, a developmentally disabled 14-year old girl drowned in a City pool when an instructor momentarily looked away.  I'm not sure that amounts to gross negligence, but like I said, it's a matter of degree sometimes more dependent on the injury.  Here, a young girl died in an otherwise safe environment; she had safely participated in the swimming program for the previous three years.  A truly sad occurrence, however, and my heart goes out to the Janeways.  Their advocacy raises questions far beyond this young girl's untimely death.

Those questions are evidenced by the wealth of amicus curiae (friend of the court) briefs filed by several groups, including the League of California Cities, the California State Association of Counties, NASCAR, the Sierra Club and 24 Hour Fitness health clubs supporting the position taken by the City of Santa Barbara.  The City, of course, claimed the waiver of its gross negligence was effective.  The Janeways contended otherwise. 

Admittedly, the Sierra Club is an odd bedfellow in this group.

Even so, how do we deal with the fallout from this opinion?  Will courts and juries now look right past waivers and examine more closely the conduct of the party who caused the injury?  I think we exercise that inquiry now, but one thing will certainly be different. 

There will be no automatic dismissal of plaintiff's cases.  The courts and juries will confront the injury and the act that caused the injury.

Expect your insurance premiums and taxes to go up, and expect those who suffer injuries to recover more compensation.   Perhaps both justifiably so. 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, July 16, 2007 at 23:18 Comments Closed (0) |
 
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