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Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney

The easiest way to void a release is to say the release has no legal value or is not worth anything. Don’t be afraid to be honest with your clients.

Guido et al., v. Koopman, 1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350

State: California: Court of Appeal of California, First Appellate District, Division Five.

Plaintiff: Diana L. Guido et al.

Defendant: Charles Koopman

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the defendant

Year: 1991

This case would have been decided for the plaintiff but for one small fact. The plaintiff was an attorney. If the plaintiff wasn’t an attorney the screw ups by the defendant would have allowed any other plaintiff to win the case.

The plaintiff signed up with the defendant to take horseback riding lessons. When she did so she was given a release so sign. She was hesitant about signing the release. The defendant told her it had no value and he only did it because his insurance company made him do it.

In her deposition Guido [plaintiff] testified she “just didn’t feel comfortable signing something that said ‘Release’ on it on the top.” However, she signed it without reading it because respondent [defendant] advised her, “…  It doesn’t mean anything.  It is something that I need to have you sign, because my insurance company won’t let me give lessons unless I have people sign this.  …  As a matter of fact, the insurance company wants me to give the students this long detailed form, which I don’t do, because it scares them away when they see this long, detailed form.

The plaintiff took lessons from the defendant twice a week for 9 months before she was bucked from a horse suffering injuries. She had bucked from a horse while taking lessons with this defendant earlier. She sued and the trial court dismissed the complaint based on the release.

Analysis: making sense of the law based on these facts.

This case has a few interesting statements. The plaintiff stated she did not think that an inherent risk of riding a horse was the risk of being thrown off the horse. The court responded with this statement.

As to appellants’ argument that the release is ineffective because Guido did not think being thrown off a horse was an inherent risk of horseback riding, we are of the contrary view–that it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse. The cases of injuries from horseback riding are numerous, and we have found none which describe this risk as unexpected or extraordinary.

The next argument made by the plaintiff was the release was void because it was against public policy. The court’s analysis of public policy in this case was well thought out and well written.

In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics.  It concerns a business of a type generally thought suitable for public regulation.  The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.  As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.  In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

This analysis of public policy was along the same lines as all other states that have looked at the issue with regard to releases for recreational activities.

Other than in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 reviewed in Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. No court has found a recreational activity to be subject to public policy exceptions. For a business to be found to be subject to the public policy exception to using a release it must be found to be:

… a business of a type generally thought suitable for public regulation. 

… the business invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

… the business confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

…, the person or property of the purchaser is placed under the control of the business, subject to the risk of carelessness by the seller or his agents.

With the sole exception of Oregon, the public policy argument to void a release has never worked against a recreational business. The court then looked at whether horseback riding was recreational. The analogy started with the settling of the west up to modern times.

However, for better or worse, the times have changed, and except for a few working cattle ranches where the cow pony has not been completely replaced by the pickup truck, equestrian activities are largely confined to the entertainment arena.

We are unaware of any constitutional or statutory provision that would place horseback riding within the “public interest” category.

Finally the court looked at whether the release was void because of the statements made by the defendant. This is called fraudulent misrepresentation and allows a party to rescind the release. This can also be defined as nondisclosure of a material fact to the contract, which allows rescission of the release. A fraudulent misrepresentation is one made to convince someone to do something.

The representations need not be made with knowledge of actual falsity but also include the “false assertion of [a] fact by one who has no reasonable grounds for believing his own statements to be true, and when made with [the] intent to induce the other to alter his position, to his injury.

The key is the reliance must be justified. Meaning the misrepresentation must be significant so that the fact being misrepresented is important. The other requirement is the person relying on the misrepresentation must do so because it is on its face seemingly valid. “Justifiable reliance is an essential element of a claim for fraudulent misrepresentation, and the reasonableness of the reliance is ordinarily a question of fact.”

The court found the reliance was not justified in this case but for only one reason. The plaintiff was an attorney.

Guido’s [plaintiff] deposition testimony on which appellants rely also reveals that she is a practicing attorney and uses releases in her practice. In essence, she is asking this court to rule that a practicing attorney can rely on the advice of an equestrian instructor as to the validity of a written release of liability that she executed without reading.

In determining whether one can reasonably or justifiably rely on an alleged misrepresentation, the knowledge, education and experience of the person claiming reliance must be considered.

The appellate court found that an attorney could not rely on the legal statements of a non-attorney. “Under these circumstances, we conclude as a matter of law that any such reliance was not reasonable.”

This is a remarkable statement from the court. It makes sense, but at the same time, it has no real value because you are not going to review every participant to determine if they are a lawyer so you can then on worry about misrepresenting material facts about your release.

So Now What?

If the misrepresentation had been made to anyone else this decision would have gone the other way.

The defendant’s fear in having customers sign a release or be scared away from his business because of a release used to be common. However it is an incorrect fear.

The first thing to remember is the people the release scares away are the people who will be hurt and sue if they are hurt. Part of the value of a good release is that it will scare some people away.

The next issue is it will scare everyone away. I had one client have 40,000 people a year for more than ten years sign the release. Over those ten years 26 people refused to sign the release.

You have an obligation to your clients to tell them of the risks of the activity. Nothing can be worse than to have someone on a trip who is terrified because they did not understand the real risks of the activity. It is even worse when someone is injured or dies because they did not understand the risks. Your release must tell the people what they are getting into. It will save you time and money, it will make your customer’s trip better and it will save your butt!

This defendant got lucky.

What do you think? Leave a comment.

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Copyright 2015 Recreation Law (720) Edit Law

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Equine, Horseback Riding, Fraudulent Misrepresentation, Release, Rescission, Nondisclosure,

 

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