Tunkl v. The Regents of the University of California, 60 Cal. 2d 92; 383 P.2d 441; 32 Cal. Rptr. 33; 1963 Cal. LEXIS 226; 6 A.L.R.3d 693

Tunkl v. The Regents of the University of California, 60 Cal. 2d 92; 383 P.2d 441; 32 Cal. Rptr. 33; 1963 Cal. LEXIS 226; 6 A.L.R.3d 693

OLGA TUNKL, as Executrix, etc., Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and   Respondent

L. A. No. 26984

Supreme Court of California

60 Cal. 2d 92; 383 P.2d 441; 32 Cal. Rptr. 33; 1963 Cal. LEXIS 226; 6 A.L.R.3d 693

July 9, 1963

PRIOR HISTORY:

APPEAL from a judgment of the Superior Court of Los Angeles County.  Jerold E. Weil, Judge.

Action for personal injuries alleged to have resulted from the negligence of physicians employed by a nonprofit charitable research hospital.

DISPOSITION:

Reversed.  Judgment for defendant reversed.

HEADNOTES: CALIFORNIA OFFICIAL REPORTS HEADNOTES

(1) Release–Validity–Agreements Affecting Public Interest.  –An attempted exculpatory release provision is invalid as affecting a public interest if it involves a transaction that 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 such 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; and, 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.

(2)  Id.–Validity: Hospitals–Liability–Release.  –A release from liability for future negligence imposed on a prospective patient as a condition for admission to a charitable research hospital falls within the category of agreements affecting the public interest and the exculpatory provisions included within it are invalid under Civ. Code, § 1668, providing that contracts having for their object, either directly or indirectly, the exemption of anyone from responsibility for his own fraud, or wilful injury to the person or property of another, or violation of law, are against the policy of the law.

(3)  Id.–Validity: Hospitals–Liability–Release.  –A release from liability for future negligence imposed on a prospective patient as a condition for admission to a charitable research hospital falls within the category of agreements affecting the public interest whether the prospective patient pays or does not pay for the treatment received in the hospital; there is no distinction in the hospital’s duty of care between a paying and a nonpaying patient.

(4)  Id.–Validity: Hospitals–Liability–Release.  –A charitable research hospital cannot obtain exemption, by means of an exculpatory release agreement imposed on a prospective patient as a condition for admission, from liability for the future negligence of its employees, as distinguished from exemption as to its “own” negligence.

JUDGES:

In Bank. Tobriner, J.  Gibson, C. J., Traynor, J., Schauer, J., McComb, J., Peters, J., and Peek, J., concurred.

OPINIONBY:

TOBRINER

OPINION:

[*94][**441][***33]  This case concerns the validity of a release from liability for future negligence imposed as a condition for admission to a charitable research hospital.  For the reasons we hereinafter specify, we have concluded that an agreement between a hospital  [**442][***34]  and an entering patient affects the public interest and that, in consequence, the exculpatory provision included within it must be invalid under Civil Code section 1668.

Hugo Tunkl brought this action to recover damages for personal injuries alleged to have resulted from the negligence of two physicians in the employ of the University of California Los Angeles Medical Center, a hospital operated and maintained by the Regents of the University of California as a nonprofit charitable institution.  Mr. Tunkl died after suit was brought, and his surviving wife, as executrix, was substituted as plaintiff.

The University of California at Los Angeles Medical Center admitted Tunkl as a patient on June 11, 1956.  The Regents maintain the hospital for the primary purpose of aiding and developing a program of research and education in the field of medicine; patients are selected and admitted if the study and treatment of their condition would tend to achieve these purposes.  Upon his entry to the hospital, Tunkl signed a document setting forth certain “Conditions of Admission.” The crucial condition number six reads as follows: “Release: The hospital is a nonprofit, charitable institution.  In consideration of the hospital and allied services to be rendered and the rates charged therefor, the patient or his legal representative agrees to and hereby releases The Regents of the University of California, and the hospital from any and all liability for the negligent or wrongful acts or omissions of its employees, if the hospital has used due care in selecting its employees.”

Plaintiff stipulated that the hospital had selected its employees with due care.  The trial court ordered that the issue of the validity of the exculpatory clause be first submitted to the jury and that, if the jury found that the provision did not bind plaintiff, a second jury try the issue of alleged malpractice.  When, on the preliminary issue, the jury returned a verdict sustaining the validity of the executed release, the  [*95]  court entered judgment in favor of the Regents.  n1 Plaintiff appeals from the judgment.

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n1 Plaintiff at the time of signing the release was in great pain, under sedation, and probably unable to read.  At trial plaintiff contended that the release was invalid, asserting that a release does not bind the releasor if at the time of its execution he suffered from so weak a mental condition that he was unable to comprehend the effect of his act ( Perkins v. Sunset Tel. & Tel. Co. (1909) 155 Cal. 712 [103 P. 190]; Raynale v. Yellow Cab Co. (1931) 115 Cal.App. 90 [300 P. 991]; 42 Cal.Jur.2d, Release § 20).  The jury, however, found against plaintiff on this issue.  Since the verdict of the jury established that plaintiff either knew or should have known the significance of the release, this appeal raises the sole question of whether the release can stand as a matter of law.

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We shall first set out the basis for our prime ruling that the exculpatory provision of the hospital’s contract fell under the proscription of Civil Code section 1668; we then dispose of two answering arguments of defendant.

We begin with the dictate of the relevant Civil Code section 1668.  The section states: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”

The course of section 1668, however, has been a troubled one.  Although, as we shall explain, the decisions uniformly uphold its prohibitory impact in one circumstance, the courts’ interpretations of it have been diverse.  Some of the cases have applied the statute strictly, invalidating any contract for exemption from liability for negligence.  The court in England v. Lyon Fireproof Storage Co. (1928) 94 Cal.App. 562 [271 P. 532], categorically states, “The court correctly instructed the jury that: ‘The defendant cannot limit its liability against its own negligence by contract, and any contract to that effect would be void.'” (P. 575.) (To  [**443][***35]  the same effect: Union Constr. Co. v. Western Union Tel. Co. (1912) 163 Cal. 298, 314-315 [125 P. 242].) n2 The recent case of Mills v. Ruppert (1959) 167 Cal.App.2d 58, 62-63 [333 P.2d 818], however, apparently limits “[Negligent] . . . violation of law” exclusively to statutory law.  n3 Other cases hold that  [*96]  the statute prohibits the exculpation of gross negligence only; n4 still another case states that the section forbids exemption from active as contrasted with passive negligence.  n5

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n2 Accord, Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362, 377-378 [248 P. 947]; cf.  Estate of Garcelon (1894) 104 Cal. 570, 589 [38 P. 414, 43 Am.St.Rep. 134, 32 L.R.A. 595].

n3 To the same effect: Werner v. Knoll (1948) 89 Cal.App.2d 474 [201 P.2d 45]; 15 Cal.L.Rev. 46 (1926). This interpretation was criticized in Barkett v. Brucato (1953) 122 Cal.App.2d 264, 277 [264 P.2d 978], and 1 Witkin, Summary of California Law 228 (7th ed. 1960).  The latter states: “Apart from the debatable interpretation of ‘violation of law’ as limited strictly to violation of statutes, the explanation appears to make an unsatisfactory distinction between (1) valid exemptions from liability for injury or death resulting from types of ordinary or gross negligence not expressed in statutes, and (2) invalid exemptions where the negligence consists of violation of one of the many hundreds of statutory provisions setting forth standards of care.”

n4 See Butt v. Bertola (1952) 110 Cal.App.2d 128 [242 P.2d 32]; Ryan Mercantile Co. v. Great Northern Ry. Co. (D. C. Mont. 1960) 186 F.Supp. 660, 667-668. See also Smith, Contractual Controls of Damages in Commercial Transactions, 12 Hastings L.J. 122, 142 (1960), suggesting that section 1668 permits exculpatory clauses for all but intentional wrongs, an interpretation which would render the term “negligent . . . violation of law” totally ineffective.

n5 Barkett v. Brucato (1953) 122 Cal.App.2d 264, 277 [264 P.2d 978].

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In one respect, as we have said, the decisions are uniform.  The cases have consistently held that the exculpatory provision may stand only if it does not involve “the public interest.” n6 Interestingly enough, this theory found its first expression in a decision which did not expressly refer to section 1668. In Stephens v. Southern Pac. Co. (1895) 109 Cal. 86 [41 P. 783, 50 Am. St. Rep. 17, 29 L.R.A. 751], a railroad company had leased land, which adjoined its depot, to a lessee who had constructed a warehouse upon it.  The lessee covenanted that the railroad company would not be responsible for damage from fire “caused from any . . . means.” (P. 87.) This exemption, under the court ruling, applied to the lessee’s damage resulting from the railroad company’s carelessly burning dry grass and rubbish.  Declaring the contract not “violative of sound public policy” (p. 89), the court pointed out “. . . As far as this transaction was concerned, the parties when contracting stood upon common ground, and dealt with each other as A and B might deal with each other with reference to any private business undertaking.  . . .” (P. 88.) The court concluded “that the interests  [*97]  of the public in the contract are more sentimental than real” (p. 95; italics added) and that the exculpatory provision was therefore enforceable.

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n6 The view that the exculpatory contract is valid only if the public interest is not involved represents the majority holding in the United States. Only New Hampshire, in definite opposition to “public interest” test, categorically refuses to enforce exculpatory provisions.  The cases are collected in an extensive annotation in 175 A.L.R. 8 (1948). In addition to the California cases cited in the text and note 7 infra, the public interest doctrine is recognized in dictum in Sproul v. Cuddy (1955) 131 Cal.App.2d 85, 95 [280 P.2d 158]; Basin Oil Co. v. Baash-Ross Tool Co.  (1954) 125 Cal.App.2d 578, 594 [271 P.2d 122]; Hubbard v. Matson Navigation Co. (1939) 34 Cal.App.2d 475, 477 [93 P.2d 846]. Each of these cases involved exculpatory clauses which were construed by the court as not applicable to the conduct of the defendant in question.

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In applying this approach and in manifesting their reaction as to the effect of the exemptive clause upon the public interest, some later courts enforced, and others invalidated  [**444][***36]  such provisions under section 1668. Thus in Nichols v. Hitchcock Motor Co. (1937) 22 Cal.App.2d 151, 159 [70 P.2d 654], the court enforced an exculpatory clause on the ground that “the public neither had nor could have any interest whatsoever in the subject-matter of the contract, considered either as a whole or as to the incidental covenant in question.  The agreement between the parties concerned ‘their private affairs’ only.” n7

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n7 See also Hischemoeller v. National Ice etc. Storage Co. (1956) 46 Cal.2d 318, 328 [294 P.2d 433] (contract upheld as an “ordinary business transaction between businessmen”); Mills v. Ruppert (1959) 167 Cal.App.2d 58, 62 [333 P.2d 818] (lease held not a matter of public interest); Inglis v. Garland (1936) 19 Cal.App.2d Supp. 767, 773 [64 P.2d 501] (same); cf.  Northwestern M.F. Assn. v. Pacific etc. Co. (1921) 187 Cal. 38, 41 [200 P. 934] (exculpatory clause in bailment upheld because of special business situation).

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In Barkett v. Brucato (1953) 122 Cal.App.2d 264, 276 [264 P.2d 978], which involved a waiver clause in a private lease, Justice Peters summarizes the previous decisions in this language: “These cases hold that the matter is simply one of interpreting a contract; that both parties are free to contract; that the relationship of landlord and tenant does not affect the public interest; that such a provision affects only the private affairs of the parties.  . . .” (Italics added.)

On the other hand, courts struck down exculpatory clauses as contrary to public policy in the case of a contract to transmit a telegraph message ( Union Constr. Co. v. Western Union Tel. Co. (1912) 163 Cal. 298 [125 P. 242]) and in the instance of a contract of bailment ( England v. Lyon Fireproof Storage Co. (1928) 94 Cal.App. 562 [271 P. 532]). In Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362 [248 P. 947], the court invalidated an exemption provision in the form used by a payee in directing a bank to stop payment on a check.  The court relied in part upon the fact that “the banking public, as well as the particular individual who may be concerned in the giving of any stop-notice, is interested in seeing that the bank is held accountable for the ordinary and regular performance of its duties and, also, in seeing that direction  [*98]  in relation to the disposition of funds deposited in [the] bank are not heedlessly, negligently, and carelessly disobeyed and money paid out, contrary to directions given.” (P. 377.) The opinion in Hiroshima was approved and followed in Grisinger v. Golden State Bank (1928) 92 Cal.App. 443 [268 P. 425]. n8

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n8 Exculpatory clauses were regarded as invalid, although without reference to the public interest doctrine, in Franklin v. Southern Pac. Co. (1928) 203 Cal. 680, 686 [265 P. 936, 59 A.L.R. 118] (common carrier); Dieterle v. Bekin (1904) 143 Cal. 683, 688 [77 P. 664] (bailment); George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 846 [205 P.2d 1037] (bailment, clause upheld as one for declaration of value and not complete exculpation); Hall-Scott Motor Car Co. v. Universal Ins. Co. (9th Cir. 1941) 122 F.2d 531, 533-534 (California law, clause upheld on ground that transaction not a bailment).

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If, then, the exculpatory clause which affects the public interest cannot stand, we must ascertain those factors or characteristics which constitute the public interest. The social forces that have led to such characterization are volatile and dynamic.  No definition of the concept of public interest can be contained within the four corners of a formula.  The concept, always the subject of great debate, has ranged over the whole course of the common law; rather than attempt to prescribe its nature, we can only designate the situations in which it has been applied.  We can determine whether the instant contract does or does not manifest the characteristics which have been held to stamp a contract as one affected with a public interest.

(1)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  [**445] [***37]  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. n9 The party seeking exculpation is engaged  [*99]  in performing a service of great importance to the public, n10 which is often a matter of practical necessity for some members of the public.  n11 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.  n12 As a result of the essential nature  [**446][***38]  of the  [*100]  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.  n13 In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, n14 and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection  [*101]  against negligence.  n15 Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, n16 subject to the risk of carelessness by the seller or his agents.

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n9 “Though the standard followed does not always clearly appear, a distinction seems to be made between those contracts which modify the responsibilities normally attaching to a relationship which has been regarded in other connections as a fit subject for special regulatory treatment and those which affect a relationship not generally subjected to particularized control.” (11 So.Cal.L.Rev. 296, 297 (1938); see also Note (1948) 175 A.L.R. 8, 38-41.)

In Munn v. Illinois (1877) 94 U.S. 113 [24 L.Ed. 77], the Supreme Court appropriated the common law concept of a business affected with a public interest to serve as the test of the constitutionality of state price fixing laws, a role it retained until Nebbia v. New York (1934) 291 U.S. 502 [54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469], and Olsen v. Nebraska (1941) 313 U.S. 236 [61 S.Ct. 862, 85 L.Ed. 1305, 133 A.L.R. 1500]. For discussion of the constitutional use and application of the “public interest” concept, see generally Hall, Concept of Public Business (1940); Hamilton, Affectation with a Public Interest (1930) 39 Yale L.J. 1089.

n10 See New York C. Railroad Co. v. Lockwood (1873) 84 U.S. (17 Wall.) 357, 378-382 [21 L.Ed. 627]; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362, 377 [248 P. 947]; cf.  Lombard v. Louisiana (1963) 373 U.S. 267 [83 S.Ct. 1122, 10 L.Ed.2d 338] [Douglas J., concurring] (holding that restaurants cannot discriminate on racial grounds, and noting that “places of public accommodation such as retail stores, restaurants, and the like render a ‘service which has become a public interest’ . . . in the manner of the innkeepers and common carriers of old.”); Charles Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U.S. 522 [43 S.Ct. 630, 67 L.Ed. 1103] (“public interest” as test of constitutionality of price fixing); German Alliance Ins. Co. v. Lewis (1914) 233 U.S. 389 [34 S.Ct. 612, 58 L.Ed. 1011, L.R.A. 1915C 789] (same); Hamilton, Affectation with a Public Interest (1930) 39 Yale L.J. 1089 (same); Arterburn, The Origin and First Test of Public Callings (1927), 75 U.Pa.L.Rev. 411, 428 ( “public interest” as one test of whether business has duty to serve all comers). But see Simmons v. Columbus Venetian Stevens Buildings, Inc. (1958) 20 Ill.App.2d 1, 25-32 [155 N.E.2d 372, 384-387] (apartment leases, in which exculpatory clauses are generally permitted, are in aggregate as important to society as contracts with common carriers).

n11 See Bisso v. Inland Waterways Corp. (1955) 349 U.S. 85, 91 [75 S.Ct. 629, 99 L.Ed. 911] New York C. Railroad Co. v. Lockwood, supra; Fairfax Gas & Supply Co. v. Hadary (4th Cir. 1945) 151 F.2d 939; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 375 [349 P.2d 814, 821]; 15 U.Pitt.L.Rev. 493, 499-500 (1954); Note (1948) 175 A.L.R. 8, 16-17; cf.  Charles Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U.S. 522 [43 S.Ct. 630, 67 L.Ed. 1103] (constitutional law); Munn v. Illinois (1877) 94 U.S. 113 [24 L.Ed. 77] (same); Hall, Concept of Public Business, p. 94 (1940) (same).

n12 See Burdick, The Origin of the Peculiar Duties of Public Service Companies (1911), 11 Colum.L.Rev. 514, 616, 743; Lombard v. Louisiana, supra, fn. 10. There is a close historical relationship between the duty of common carriers, public warehousemen, innkeepers, etc. to give reasonable service to all persons who apply, and the refusal of courts to permit such businesses to obtain exemption from liability for negligence.  See generally Arterburn, supra, fn. 10.  This relationship has led occasional courts and writers to assert that exculpatory contracts are invalid only if the seller has a duty of public service.  28 Brooklyn L.Rev. 357, 359 (1962); see Ciofalo v. Vic Tanney Gyms, Inc. (1961) 10 N.Y.2d 294, 220 N.Y.S.2d 962 [177 N.E.2d 925]. A seller under a duty to serve is generally denied exemption from liability for negligence; (however, the converse is not necessarily true) 44 Cal.L.Rev. 120 (1956); cf. Charles Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U.S. 522, 538 [43 S.Ct. 630, 67 L.Ed. 1103, 1109] (absence of duty to serve public does not necessarily exclude business from class of those constitutionally subject to state price regulation under test of Munn v. Illinois); German Alliance Ins. Co. v. Lewis (1914) 233 U.S. 389, 407 [34 S.Ct. 612, 58 L.Ed. 1011, 1020, L.R.A. 1915C 1189] (same).  A number of cases have denied enforcement to exculpatory provisions although the seller had no duty to serve.  See, e.g., Bisso v. Inland Waterways Corp. (1955) 349 U.S. 85 [75 S.Ct. 629, 99 L.Ed. 911]; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; cases on exculpatory provisions in employment contracts collected in 35 Am.Jur., Master & Servant, § 136.

n13 Prosser, Torts (2d ed. 1955) p. 306: “The courts have refused to uphold such agreements . . . where one party is at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.” Note (1948) 175 A.L.R. 8, 18: “Validity is almost universally denied to contracts exempting from liability for its negligence the party which occupies a superior bargaining position.” Accord: Bisso v. Inland Waterways Corp. (1955) 349 U.S. 85, 91 [75 S.Ct. 629, 99 L.Ed. 911, 918]; Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362, 377 [248 P. 947]; Ciofalo v. Vic Tanney Gyms, Inc. (1961) 13 App.Div.2d 702 [214 N.Y.S.2d 99] (Kleinfeld, J. dissenting); 6 Williston, Contracts (rev. ed. 1938) § 1751C; Note, The Significance of Comparative Bargaining Power in the Law of Exculpation (1937) 37 Colum.L.Rev. 248; 20 Corn. L.Q. 352 (1935); 8 U.Fla.L.Rev. 109, 120-121 (1955); 15 U.Pitt.L.Rev. 493 (1954); 19 So.Cal.L.Rev. 441 (1946); see New York C. Railroad Co. v. Lockwood (1873) 84 U.S. (17 Wall.) 357, 378-382 [21 L.Ed. 627]; Fairfax Gas & Supply Co. v. Hadary (4th Cir. 1945) 151 F.2d 939; Northwestern M.F. Assn. v. Pacific etc. Co. (1921) 187 Cal. 38, 43-44 [200 P. 934]; Inglis v. Garland (1936) 19 Cal.App.2d Supp. 767, 773 [64 P.2d 501]; Jackson v. First Nat. Bank of Lake Forest (1953) 415 Ill. 453, 462-463 [114 N.E.2d 721, 726]; Simmons v. Columbus Venetian Stevens Buildings, Inc. (1958) 20 Ill.App.2d 1, 26-32 [155 N.E.2d 372, 384-387]; Hall v. Sinclair Refining Co. (1955) 242 N.C. 707 [89 S.E.2d 396]; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 375 [349 P.2d 814, 821]; 44 Cal.L.Rev. 120 (1956); 4 Mo.L.Rev. 55 (1939).

n14 See Simmons v. Columbus Venetian Stevens Buildings, Inc. (1958) 20 Ill.App.2d 1, 30-33 [155 N.E.2d 372, 386-387]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 376 [349 P.2d 814, 821]; Note (1948) 175 A.L.R. 8, 15-16, 112.

n15 See 6A Corbin, Contracts (1962) § 1472 at p. 595; Note (1948) 175 A.L.R. 8, 17-18.

n16 See Franklin v. Southern Pac. Co. (1928) 203 Cal. 680, 689-690 [265 P. 936, 59 A.L.R. 118]; Stephens v. Southern Pac. Co. (1895) 109 Cal. 86, 90-91 [41 P. 783, 50 Am.St.Rep. 17, 29 L.R.A. 751]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 377 [349 P.2d 814, 822]; 44 Cal.L.Rev. 120, 128 (1956); 20 Corn.L.Q. 352, 358 (1935).

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While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances pose a different situation.  In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer. Since the service is one which each  [**447][***39]  member of the public, presently or potentially, may find essential to him, he faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of another’s negligence.  The public policy of this state has been, in substance, to posit the risk of negligence upon the actor; in instances in which this policy has been abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.

(2)In the light of the decisions, we think that the hospital-patient contract clearly falls within the category of agreements affecting the public interest. To meet that test, the agreement need only fulfill some of the characteristics above outlined; here, the relationship fulfills all of them. Thus the contract of exculpation involves an institution suitable for, and a subject of, public regulation. (See Health & Saf. Code, §§ 1400- 1421, 32000- 32508.) n17 That the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity is hardly open to question.

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n17 “[Providing] hospital facilities to those legally entitled thereto is a proper exercise of the police power of the county . . . as it tends to promote the public health and general welfare of the citizens of the county.” ( Goodall v. Brite (1936) 11 Cal.App.2d 540, 548 [54 P.2d 510]; see Jardine v. City of Pasadena (1926) 199 Cal. 64 [248 P. 225, 48 A.L.R. 509].)

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[*102]  The hospital, likewise, holds itself out as willing to perform its services for those members of the public who qualify for its research and training facilities.  While it is true that the hospital is selective as to the patients it will accept, such selectivity does not negate its public aspect or the public interest in it.  The hospital is selective only in the sense that it accepts from the public at large certain types of cases which qualify for the research and training in which it specializes.  But the hospital does hold itself out to the public as an institution which performs such services for those members of the public who can qualify for them.  n18

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n18 See Wilmington General Hospital v. Manlove (1961) 53 Del. 338 [174 A.2d 135]; holding that a private hospital which holds itself out as rendering emergency service cannot refuse to admit a patient in an emergency, and comment on the above case in 14 Stan.L.Rev. 910 (1962).

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In insisting that the patient accept the provision of waiver in the contract, the hospital certainly exercises a decisive advantage in bargaining.  The would-be patient is in no position to reject the proffered agreement, to bargain with the hospital, or in lieu of agreement to find another hospital.  The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract.  As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called adhesion contract. Finally, when the patient signed the contract, he completely placed himself in the control of the hospital; he subjected himself to the risk of its carelessness.

In brief, the patient here sought the services which the hospital offered to a selective portion of the public; the patient, as the price of admission and as a result of his inferior bargaining position, accepted a clause in a contract of adhesion waiving the hospital’s negligence; the patient thereby subjected himself to control of the hospital and the possible infliction of the negligence which he had thus been compelled to waive.  The hospital, under such circumstances, occupied a status different than a mere private party; its contract with the patient affected the public interest. We see no cogent current reason for according to the patron of the inn a greater protection than the patient of the hospital; we cannot hold the innkeeper’s performance affords a greater public service than that of the hospital.

[**448][***40]  We turn to a consideration of the two arguments urged by [*103]  defendant to save the exemptive clause.  Defendant first contends that while the public interest may possibly invalidate the exculpatory provision as to the paying patient, it certainly cannot do so as to the charitable one. Defendant secondly argues that even if the hospital cannot obtain exemption as to its “own” negligence it should be in a position to do so as to that of its employees.  We have found neither proposition persuasive.

(3)As to the first, we see no distinction in the hospital’s duty of due care between the paying and nonpaying patient. (But see Rest., Contracts, § 575(1)(b).) The duty, emanating not merely from contract but also tort, imports no discrimination based upon economic status.  (See Malloy v. Fong (1951) 37 Cal.2d 356, 366 [232 P.2d 241]; Rest., Torts, §§ 323-324.) Rejecting a proposed differentiation between paying and nonpaying patients, we refused in Malloy to retain charitable immunity for charitable patients. Quoting Rutledge, J. in President & Directors of Georgetown College v. Hughes (1942) 130 F.2d 810, 827, we said: “Retention [of charitable immunity] for the nonpaying patient is the least defensible and most unfortunate of the distinction’s refinements.  He, least of all, is able to bear the burden.  More than all others, he has no choice.  . . .  He should be the first to have reparation, not last and least among those who receive it.” (P. 365.) To immunize the hospital from negligence as to the charitable patient because he does not pay would be as abhorrent to medical ethics as it is to legal principle.

(4)Defendant’s second attempted distinction, the differentiation between its own and vicarious liability, strikes a similar discordant note.  In form defendant is a corporation.  In everything it does, including the selection of its employees, it necessarily acts through agents.  A legion of decisions involving contracts between common carriers and their customers, public utilities and their customers, bailees and bailors, and the like, have drawn no distinction between the corporation’s “own” liability and vicarious liability resulting from negligence of agents.  We see no reason to initiate so far-reaching a distinction now.  If, as defendant argues, a right of action against the negligent agent is in fact a sufficient remedy, then defendant by paying a judgment against it may be subrogated to the right of the patient against the negligent agent, and thus may exercise that remedy.

[*104]  In substance defendant here asks us to modify our decision in Malloy , which removed the charitable immunity; defendant urges that otherwise the funds of the research hospital may be deflected from the real objective of the extension of medical knowledge to the payment of claims for alleged negligence. Since a research hospital necessarily entails surgery and treatment in which fixed standards of care may not yet be evolved, defendant says the hospital should in this situation be excused from such care.  But the answer lies in the fact that possible plaintiffs must prove negligence; the standards of care will themselves reflect the research nature of the treatment; the hospital will not become an insurer or guarantor of the patient’s recovery.  To exempt the hospital completely from any standard of due care is to grant it immunity by the side-door method of a contractual clause exacted of the patient. We cannot reconcile that technique with the teaching of Malloy.

We must note, finally, that the integrated and specialized society of today, structured upon mutual dependency, cannot rigidly narrow the concept of the public interest.  From the observance of simple standards of due care in the driving of a car to the performance of the high standards of hospital practice, the individual citizen must be completely dependent upon the responsibility of others.  The fabric of this pattern is so closely woven that the snarling of a single thread affects the whole.  We cannot lightly accept a sought immunity from careless failure to provide the hospital service upon which many must depend.  Even if the  [**449][***41]  hospital’s doors are open only to those in a specialized category, the hospital cannot claim isolated immunity in the interdependent community of our time.  It, too, is part of the social fabric, and prearranged exculpation from its negligence must partly rend the pattern and necessarily affect the public interest.

The judgment is reversed.

WordPress Tags: Tunkl,Regents,California,Rptr,LEXIS,OLGA,Executrix,Plaintiff,Appellant,Defendant,Respondent,Supreme,Court,PRIOR,HISTORY,APPEAL,judgment,Superior,Angeles,Jerold,Weil,Judge,Action,injuries,negligence,physicians,hospital,DISPOSITION,HEADNOTES,OFFICIAL,REPORTS,Release,Agreements,Public,Interest,provision,transaction,characteristics,regulation,exculpation,importance,member,advantage,strength,adhesion,purchaser,protection,person,seller,agents,Hospitals,admission,category,Code,exemption,fraud,injury,violation,policy,treatment,distinction,agreement,employees,JUDGES,Bank,Tobriner,Gibson,Traynor,Schauer,McComb,Peters,Peek,OPINIONBY,OPINION,consequence,Civil,Hugo,Medical,Center,institution,wife,June,purpose,education,medicine,purposes,Upon,Conditions,omissions,clause,jury,malpractice,verdict,Footnotes,sedation,execution,Perkins,Sunset,Raynale,significance,basis,proscription,arguments,Although,decisions,impact,circumstance,interpretations,Some,statute,England,Lyon,Fireproof,Storage,Union,Constr,Western,Mills,Ruppert,Negligent,Accord,Hiroshima,Estate,Garcelon,Werner,Knoll,interpretation,Barkett,Brucato,Witkin,Summary,Apart,statutes,explanation,exemptions,death,Butt,Bertola,Ryan,Mercantile,Great,Northern,Mont,Supp,Smith,Contractual,Controls,Damages,Commercial,Transactions,Hastings,clauses,theory,decision,Stephens,Southern,depot,lessee,warehouse,reference,States,Hampshire,opposition,annotation,addition,text,doctrine,dictum,Sproul,Cuddy,Basin,Baash,Ross,Tool,Hubbard,Matson,Navigation,reaction,Thus,Nichols,Hitchcock,Motor,covenant,affairs,Hischemoeller,National,businessmen,Inglis,Garland,Northwestern,Assn,Pacific,situation,waiver,Justice,relationship,landlord,tenant,Italics,message,instance,payee,payment,fact,performance,duties,direction,relation,money,Grisinger,Golden,State,Exculpatory,Franklin,carrier,Dieterle,Bekin,George,Bekins,declaration,Hall,Scott,Universal,factors,characterization,definition,concept,formula,situations,Though,Note,Munn,Illinois,laws,role,Nebbia,York,Olsen,Nebraska,discussion,Hamilton,Affectation,Yale,Railroad,Lockwood,Wall,Millers,Fire,Parker,Lombard,Louisiana,Douglas,restaurants,accommodation,manner,innkeepers,carriers,Charles,Wolff,Industrial,Relations,German,Alliance,Lewis,Arterburn,Origin,Test,Callings,Simmons,Columbus,Venetian,Stevens,Buildings,apartment,Bisso,Inland,Waterways,Corp,Fairfax,Hadary,Irish,Swartz,Stores,Eugene,Pitt,Burdick,Peculiar,Service,Companies,Colum,refusal,writers,Brooklyn,Ciofalo,Tanney,Gyms,absence,enforcement,employment,Master,Servant,Prosser,Torts,disadvantage,mercy,Kleinfeld,Williston,Contracts,Comparative,Power,Corn,Jackson,Lake,Forest,Sinclair,Corbin,assumption,substance,actor,instances,Health,skill,facilities,welfare,citizens,Goodall,Brite,Jardine,Pasadena,aspect,Wilmington,General,Manlove,Stan,room,status,patron,innkeeper,proposition,Rest,tort,discrimination,Malloy,Fong,differentiation,Rutledge,President,Directors,Georgetown,College,Hughes,Retention,refinements,reparation,ethics,principle,corporation,selection,legion,customers,utilities,agent,extension,knowledge,surgery,plaintiffs,insurer,guarantor,recovery,door,method,technique,dependency,From,observance,citizen,fabric,failure,doors,himself,whereby,whether,patients,exemptive,neither,supra


Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218

Nicole Azad, Plaintiff and Appellant, v. Mill Creek Equestrian Center, Inc., Defendant and Respondent.

B169611

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT

2004 Cal. App. Unpub. LEXIS 11218

December 13, 2004, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC070887. Paul G. Flynn, Judge.

DISPOSITION: Affirmed.

CORE TERMS: equestrian, gross negligence, lesson, ring, dive, misconduct, summary judgment, extreme departure, training, riding, sport, horse, standard of conduct, ordinary negligence, instructor, willful, rider, risks inherent, recommended, dismount, manual, horseback riding, jumping, notice of appeal, material fact, totally outside, triable issue, inappropriate, inherently, correctly

COUNSEL: Law Offices of Diane Goldman and Diane Goldman for Plaintiff and Appellant.

Clinton & Clinton, David A. Clinton and Katherine M. Fesler for Defendants and Respondents.

JUDGES: COOPER, P. J.; RUBIN, J., FLIER, J. concurred.

OPINION BY: COOPER

OPINION

Appellant injured herself falling off a horse during a horseback riding lesson. In this appeal, she challenges the award of summary judgment entered in favor of the equestrian center. Reviewing the record de novo, we find Azad released all claims other than gross negligence and willful misconduct. She does not allege any willful misconduct. Because she provides no evidence of gross negligence, the trial court correctly entered summary judgment. We shall affirm.

FACTUAL BACKGROUND

[*2] The facts interpreted in the light most favorable to Azad indicate the following. On March 16, 2001, Nicole Azad, an inexperienced rider, had a private horseback riding lesson at Mill Creek Equestrian Center, Inc. (MCEC). Prior to her lesson, she signed a release of liability, which was part of a two page document. Each page of the release contained a heading identifying it as a release.

During Azad’s lesson, she rode a horse named Bruno and was instructed by Sandra Samel. Samel chose to hold the lesson in a ring known as the jumping ring even though it was not the ring commonly used for beginning lessons. At the same time as Azad’s lesson, other riders were in the jumping ring including Courtney Leonard. Leonard rode a horse named Dan, who had been injured. Leonard fell off Dan, and Dan started running. In response to Dan, Bruno started running. Azad was unable to gain control over Bruno. Samel did not instruct Azad to immediately dismount and did not grab Bruno’s reins. Bruno jumped the fence, which was not as high as the standard in the industry. Azad fell off Bruno and fractured her leg.

Azad’s expert, Jill Cooke, opined that the height of the railings in the jumping ring [*3] ranged from two to two and a half feet where industry standard was three and a half feet. Cooke also concluded that “separated schooling areas are recommended.” According to Cooke, Samel should have chosen a different ring for Azad’s lesson, one dedicated to inexperienced riders. Cooke also concluded that Samel should have instructed Azad to dismount Bruno and should have held Bruno’s reigns. Cooke opined that “Ms. Samel’s failure to act promptly and appropriately to protect her student thereby created new risk to [Ms. Azad], over and above those inherent in the sport.”

PROCEDURAL BACKGROUND

Azad filed a complaint for negligence against MCEC and alleged that MCEC committed both negligence and gross negligence. MCEC moved for summary judgment.

The trial court granted MCEC’s motion for summary judgment. The court found that Azad’s express waiver was valid and that the assumption of risk doctrine applied. Azad appealed. The notice of appeal was filed after the order granting summary judgment but before judgment was entered. Construing the notice of appeal liberally, we deem this an appeal from the judgment which was subsequently entered. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn 7.) [*4]

DISCUSSION

Azad argues there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.

I. Express Assumption of Risk

Prior to her horse back riding lesson, Azad signed the following release:

“I agree that in consideration for this stable allowing my participation in this activity, under the terms set forth herein and in the MILL CREEK RULES AND REGULATIONS of which I received a copy, read, and understand, I the rider and the parent or legal guardian thereof if a minor, and on behalf of my heirs, administrators, personal representative or assigns, do agree to hold harmless, release and discharge MILL CREEK EQUESTRIAN CENTER, its owners, agents, employees, officers, directors, representatives, assigns, members, owner(s) of premises and trails, affiliated organizations, insurers, and others acting on its behalf (hereinafter collectively referred to as associates) of and from all claims, demands, causes of action and legal liability whether the same be known or unknown, anticipated or unanticipated, due to MILL CREEK [*5] EQUESTRIAN CENTER’S and/or its associates ordinary negligence; and I do further agree that except in the event of MILL CREEK EQUESTRIAN CENTER’S gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action against MILL CREEK EQUESTRIAN CENTER and ITS ASSOCIATES as stated above in this clause, for any economic and non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child and/or legal ward in relation to the premises and operations of MILL CREEK EQUESTRIAN CENTER to include while riding, handling, or otherwise being near horses owned by or in the care, custody and control of MILL CREEK EQUESTRIAN CENTER, whether on or off the premises of MILL CREEK EQUISTRIAN CENTER. I further understand that all riding engaged in at MILL CREEK EQUESTRIAN CENTER is solely at my own risk and that MILL CREEK EQUESTRIAN CENTER is not liable for any injury which may occur to me on its premises, whether bodily injury or otherwise. I further agree to release MILL CREEK EQUESTRIAN CENTER, its agents and employees from any and all liability for any injuries I may sustain while riding and agree to [*6] indemnify and hold MILL CREEK EQUESTRIAN CENTER harmless as to all claims, actions, damages, costs and expenses, including attorney’s fees, arising therefrom. [P] The aforesaid release and limitation of liability includes, without limitation, any obligations of MILL CREEK EQUESTRIAN CENTER with respect to consequential damage and negligent behavior of any of its employees. . . .” (Emphasis added.)

A. Validity of the Release

Citing Conservatorship of Estate of Link (1984) 158 Cal. App. 3d 138, 141-142, 205 Cal. Rptr. 513 (Link), Azad argues that the release is not enforceable because it is not readily identifiable as a release. In Link, the court found that a release should be distinguished from other paragraphs of the document; a release should be conspicuous; and a release must clearly convey that rights are being released. (Ibid.)

The release satisfies the Link criteria. It contains the title “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” Each page of the two page document contains a heading which is printed in bold print and underlined “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, in a paragraph [*7] titled “signer statement of awareness,” there is an acknowledgment of understanding the liability release, which Azad signed. Unlike in Link, the release does not appear to be “calculated to conceal and not to warn the unwary.” (Link, supra, 158 Cal. App. 3d at p. 141.)

Azad claims that it is not clear “what conduct is exempted from liability.” She faults the release for “simultaneously purporting to encompass claims based upon [ordinary negligence] and excluding claims based upon [gross negligence].” Azad points out that, in Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 242 Cal. Rptr. 784, a case not involving a release, the court held “in light of the adoption of the doctrine of comparative negligence in California, any attempt to categorize gross negligence separately from ordinary negligence is unnecessary.” (Id. at p. 330.) Continental Insurance Co., however, did not hold that the distinction between ordinary and gross negligence never is relevant or is inherently ambiguous. To the contrary, it recognized that the distinction remained viable where a statute proscribes gross negligence. [*8] (Id. at p. 329.) The express contractual provision distinguishing between ordinary and gross negligence is not inherently ambiguous.

Thus, the release covers conduct other than gross negligence and intentional misconduct. 1 Azad does not allege intentional misconduct. In the next section, we consider whether Azad has provided any evidence of gross negligence.

1 MCEC argues that the “Release was specific enough to warn Appellant, and to convey that Respondents would not be held liable for any physical injury to Appellant.” While the release discusses liability for “any injury” it expressly excludes “gross negligence and willful and wanton misconduct.”

II. Implied Assumption of Risk

By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 311.) A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. (Ibid.) [*9] “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005 (Kahn).)

In Kahn, supra, 31 Cal.4th at p. 996, our high court considered the doctrine of assumption of the risk in the context of a lawsuit against a swimming instructor. The court held that a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.'” (Ibid.) The court further found evidence of reckless conduct sufficient to raise a triable issue of material fact where a swim coach required a student to dive into a shallow pool without providing her any training, after promising she would not be required to dive. (Id. at p. 996.) The court specifically relied on the following evidence: “the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequences training recommended in the [*10] Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.” (Id. at p. 1012.)

Here, Azad has alleged gross negligence on the part of both her instructor and the equestrian center. Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186, quoting Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138, 181 Cal. Rptr. 732.) This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity. Therefore, we consider whether Azad has provided any evidence of an extreme departure from the ordinary standard of conduct. [*11] 2

2 Both parties cite numerous cases decided under an ordinary negligence standard, including this division’s decision in Giardino v. Brown (2002) 98 Cal.App.4th 820. We need not assess the applicability of these cases in light of Kahn because here Azad expressly released claims of ordinary negligence.

Azad relies almost exclusively on evidence from her expert, Cooke. However Cooke’s testimony does not demonstrate an extreme departure from the ordinary standard of conduct. Cooke states that the railing should have been higher, it was “recommended” that a ring be used for only one lesson, the choice of rings was “inappropriate,” and Samel’s response was “inappropriate.” Samel should have “immediately had her student dismount.” Cooke also states that Samel was “inadequately trained,” but provides no basis for this conclusion. Thus, this case is not like Kahn, where the plaintiff provided an established training manual and showed an extreme departure from this manual in that there was [*12] evidence she received no training at all. Because Azad identifies no extreme departure from the ordinary standard of conduct, she fails to raise a triable issue of material fact. The trial court correctly entered summary judgment in favor of MCEC. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

DISPOSITION

The judgment is affirmed.

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

WordPress Tags: Release,defendant,plaintiff,Azad,Mill,Creek,Equestrian,Center,Unpub,LEXIS,Nicole,Claims,negligence,Defenses,beginner,rider,lessons,instructor,Another,horse,signature,judgment,Summary,fact,MCEC,arguments,AGREEMENT,INSTRUCTION,FORM,Above,statement,California,instructors,person,purveyor,patron,injury,student,participant,statements,departure,Gross,definition,Kahn,dismissal,complaint,Here,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Horseback,Equine,signor,whether


Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380

Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380

Robert Vinson, Plaintiff and Respondent, v. Paramount Pictures Corporation et al., Defendants and Appellants.

B237965

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR

2013 Cal. App. Unpub. LEXIS 3380

May 14, 2013, Opinion Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY: [*1]

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC446030, Michelle R. Rosenblatt, Judge.

DISPOSITION: Reversed and remanded.

CORE TERMS: rope, inflatable, unambiguous, climbing, nonsuit, rock-climbing, fitness, economic damages, new trial, injury suffered, sponsored, noneconomic damages, climber’s, climb, private agreement, ordinary negligence, recreational activities, expressing, misconduct, membership, participating, partial, harness, signing, pulley, top, risk of injury, claims of negligence, injuries resulting, preclude liability

COUNSEL: Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller; Matthew B. Stucky; Pollard Mavredakis Cranert Crawford & Stevens and Terrence L. Cranert for Defendants and Appellants.

Law Offices of I. Allan Oberman, I. Allan Oberman; and Debra Fischl for Plaintiff and Respondent.

JUDGES: EPSTEIN, P. J.; MANELLA, J., SUZUKAWA, J. concurred.

OPINION BY: EPSTEIN, P. J.

OPINION

Appellants Paramount Pictures Corporation, Viacom, Inc. and Elite Special Events, Inc. (collectively appellants) appeal from a money judgment in favor of respondent Robert Vinson. The jury awarded Vinson past economic damages sustained after a fall from an inflatable rock-climbing wall at an event hosted and sponsored by appellants, finding appellants’ negligence caused the harm to Vinson. They contend: (1) the trial court erred in denying appellants’ motion for nonsuit because a release and waiver signed by Vinson precluded a finding of liability; (2) the trial court erred in finding the primary assumption of the risk doctrine did not apply, and its failure to instruct the jury on the relevant duty owed by appellants was prejudicial; [*2] and (3) the trial court abused its discretion by granting a partial new trial on the limited issue of damages.

We conclude the release signed by Vinson was valid as to the rock-climbing activity underlying his claims. Vinson expressly consented to waive any claims based on injuries incurred while participating in any activities sponsored by appellants, precluding liability. We reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Vinson was a member of the Paramount “Studio Club” (the Club). To be a member of the Club, he was required to complete an application and pay a fee. The application contained a section entitled “Assumption of Risk and Release” (the Release). The Release provided, in relevant part: “By enrolling as a member in [the Club], member hereby acknowledges that from time to time the Club sponsors certain events and activities that might present a risk of harm to the participants. In consideration of the Club’s arranging such events and activities . . . , member hereby assumes all risks associated with or resulting from such participation and member . . . releases . . . [appellants] of and from any and all claims . . . , which member may have or which may hereafter accrue [*3] on account of . . . any and all known and unknown, foreseen and unforeseen bodily and personal injuries . . . resulting or to result from any accident . . . which may occur as a result . . . of the member’s participation in any of the events or activities sponsored by the Club.” In January 2009, Vinson signed the application and initialed the Release provision.

In December 2009, the Club held a holiday party at Paramount Studios. The party included carnival games, food booths and performances. One attraction was an inflatable rock-climbing wall. The wall was approximately 30 feet tall with inflated protrusions which serve as hand and foot holds for potential climbers. When climbing on this type of wall, a climber is strapped into a harness connected to a rope. The rope then passes through a pulley at the top of the wall and loops back down to an operator of the wall. That operator uses a device called a grigri to control the amount of rope let out. The parties presented conflicting accounts of what occurred during Vinson’s participation in this activity.

Vinson claimed he was given no instruction on how to secure the harness or how to climb the wall. He testified that once he reached [*4] the top of the wall, he asked the two operators attending the wall what to do next. Vinson said the operators told him to remove his hands from the wall, grab the rope, and lean back. Shortly thereafter, all of the tension in the rope gave way and Vinson went into a free fall. He stated that he hit an inflatable apron at the base of the wall, bounced at least three feet into the air, then came crashing down on the concrete pavement surrounding the wall.

Appellants presented testimony that the operator holding the rope for Vinson gave him instructions on how to put on the harness and how to climb the wall. Once Vinson reached the top, he began to jump up and down off the wall and push back and forth, in response to encouragement from his friends below. Testimony indicated that the operator holding the rope told Vinson to stop and eventually began lowering him down the wall. At some point between 50 and 75 percent down the wall, enough slack was released on the rope to allow Vinson to reach the bottom. Vinson jumped and landed on the inflatable apron and, according to both of the operators, never hit the concrete.

Based on testimony from the operators themselves and an expert in rock-wall [*5] climbing, the operators should have had full control of the rope at all times, regardless of what the climber was doing. The amount of rope released from such a mechanism is solely controlled by the operators and thus the pace of a climber’s descent is determined by the operator releasing rope through the pulley system. The operators testified that neither of them had seen the manual that accompanied the inflatable wall and provided detailed instructions on how to operate it. The operator who controlled Vinson’s climb received only one hour of training. An expert testified that one half to a full day of training is typical, followed by constant supervision during the first day of operating a wall. The expert testified that, based on the evidence, the operator in this case failed to understand the mechanics of the pulley system and was negligent in his operation during Vinson’s climb. Vinson produced evidence that he suffered physical and psychological injuries as a result of the fall, leading to lost wages and lost earnings.

Vinson brought suit against appellants for past and future economic damages and past and future noneconomic damages. At the close of Vinson’s evidence, appellants [*6] moved for nonsuit on two grounds. First, they argued the Release, signed by Vinson, constituted a waiver of any claims arising out of participation in any events at the Club, precluding liability. The trial court found the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties” and denied appellants’ motion on that ground. Second, they argued the primary assumption of the risk doctrine should apply to preclude liability because Vinson assumed the risks inherent in climbing the wall. They argued that general negligence principles did not apply, and because there was no evidence that the operators increased the risk of injury beyond that inherent in the activity, a nonsuit should be granted. The court found the climbing of an inflatable rock wall was somewhere between a carnival ride and a sport. It concluded the doctrine did not apply and denied the motion for nonsuit.

The jury returned a verdict for Vinson, finding appellants were negligent and that their negligence caused Vinson’s injuries. It awarded Vinson $70,620 in past economic damages, but nothing for future economic damages and nothing for the noneconomic damages [*7] he sought. Vinson moved for new trial limited to the issue of general damages or, in the alternative, for an addittur in an amount to be determined by the court. The court concluded there was no proper reason for the jury to award Vinson over $70,000 in special damages yet find that he did not incur any pain and suffering as a result of the incident. It reasoned that even if the jury found Vinson was malingering, and thereby inflating his claim for general damages, awarding no noneconomic damages was improper. The court granted Vinson’s motion for a partial new trial subject to appellants’ consent to an additur in the amount of $80,000. Appellants declined to accept the additur, and this appeal followed.

DISCUSSION

Appellants contend the trial court erred in denying their motion for nonsuit on two grounds. They argue the court should have found Vinson’s signature on the Release precluded liability. They also argue that even if the Release did not bar the claim, voluntarily participating in the climbing activity involved an assumption of the risk that negated appellants’ duty to eliminate the risks inherent in that activity.

Persons generally have a duty to use due care to avoid injuring [*8] others, and liability may result if their negligent conduct causes injury to another. (Civ. Code, § 1714; Knight v. Jewett (1992) 3 Cal.4th 296, 315.) However, a private party may expressly agree to release any claims of negligence against another by contract; such an agreement “is valid unless it contravenes public policy.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1292, p. 686; see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758 [future liability for ordinary negligence generally may be released].)1 Implied assumption of the risk, on the other hand, involves exemption from liability based on the nature of a specific activity and the relationship of the parties to that activity, rather than on an express agreement. (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)

1 Our Supreme Court has noted that California courts have invalidated releases of liability for ordinary negligence when it is determined that the “particular release concerns a service that transcends a purely private agreement and affects the public interest.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 757-758.) But, private agreements [*9] made in connection with various sporting events or recreational activities generally have been upheld, as they do not involve necessary services and therefore do not contravene public policy or “transcend the realm of purely private matters.” (Id. at p. 759.) We find this release, signed in consideration for participation in various activities at a private club, constitutes “a purely private agreement”; Vinson’s participation in the rock-climbing activity did not involve necessary services and was a recreational activity well within the broad range of activities in which a number of California cases have upheld express waivers. (Id. at pp. 757, 759-760.)

“To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490, declined to follow by Madison v. Superior Court (1988) 203 Cal.App.3d 589, 602, fn. 9.) “‘It is also necessary that the expressed terms of the agreement be applicable to the particular misconduct of the defendant . . . .’ [Citation.].” (Ibid., italics omitted.) [*10] “With respect to the question of express waiver, the legal issue is not whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484.)

The trial court denied appellants’ motion for nonsuit based on the signing of the Release, concluding it did not apply to Vinson’s claim because the “release [did] not ensure that [Vinson] knew the risks and hazards of this activity when he was signing a waiver of liability for negligence” on appellants’ part. The court reasoned that the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties.”

Appellants argue the Release was explicitly intended to cover any activity at the Club and was sufficiently unambiguous to cover the activity at issue. They argue it was unnecessary to specifically identify rock-climbing as a covered activity, or the risks involved, in order for the Release to be effective. We agree.

Here, the plain language of the Release is explicit as to its breadth. According to its terms, the signer [*11] was releasing “any and all claims” against appellants based on “any and all injuries” resulting from “any accident” arising out of his or her “participation in any of the events or activities sponsored by the Club.” Vinson argues the specific activity involved here, inflatable rock wall climbing, was not comprehended by the release. Similarly, the trial court relied on the theory that the Release failed to identify the specific risk involved or that the risks were unknown to Vinson when he signed it. However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601.) Furthermore, “[t]he inclusion of the term ‘negligence’ is simply [*12] not required to validate an exculpatory clause.” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 67.)

In Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th at page 67, the court dealt with a release in the fitness center context. The court found the defendant health club unremarkably foresaw potential injuries to members of its club and rationally required them to sign a release and assumption of risk as a condition of membership. (Ibid.) The release broadly covered injuries “‘arising out of or connected with the use of the fitness center.”‘ (Id. at p. 69.) The court found the release covered the injury suffered by the plaintiff as it occurred while using the fitness center.

In Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at page 1358, the court discussed a release signed by the plaintiff upon joining the defendant fitness center. The release stated the signer was waiving liability for injuries suffered while on the defendant’s premises, “‘whether using exercise equipment or not.'” (Ibid.) The court found the purpose of the release was to protect the defendant from future liability in consideration for granting the plaintiff access to defendant’s premises. [*13] (Ibid.) The plaintiff was then injured while adjusting a television on defendant’s premises. (Id. at p. 1355.) The court rejected the plaintiff’s argument that the release should not apply to an activity which was secondary to his membership in the fitness center, especially when the risk of a falling television was not known to him at the time the release was signed. (Id. at pp. 1357-1359.) The court concluded that the broad, unambiguous language of the release served to preclude liability on the part of the defendant for any injuries suffered by plaintiff on defendant’s premises. (Id. at p. 1358.)

Here, Vinson signed a release of all claims for any injuries suffered on appellants’ premises in consideration for membership in the Club and access to certain events. Similar to the releases discussed in the cases above, we find the language of the release signed by Vinson broad and unambiguous. The fact that the activity resulting in the injury was not specifically mentioned in the express terms of the release does not make it ineffective. Having consented to release any claims against appellants based on injuries incurred while participating in any activities at the Club, Vinson absolved [*14] appellants of liability for ordinary negligence during his participation in this particular activity.

Because we have concluded Vinson expressly released appellants from liability, thereby serving as a bar to his claim of negligence, appellants’ contentions regarding primary assumption of the risk are moot.

Appellants also contend the jury’s decision to award substantial economic damages, but no noneconomic damages, was clearly a compromise verdict. They argue the trial court’s granting of a partial new trial solely on the issue of damages was an abuse of discretion, and a full new trial should have been ordered. Again, we need not address this issue as we have concluded the negligence claim was precluded by Vinson’s signing of the Release.

DISPOSITION

The judgment is reversed, and the case remanded with instructions. Appellants to have their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.