She also argued the weaker one should prevail if one had too.
Powers v. The Superior Court Of Sacramento County, 196 Cal. App. 3d 318; 242 Cal. Rptr. 55; 1987 Cal. App. LEXIS 2330
Plaintiff: Dixie Hoffman and Gerald Hoffman, et al., (identified as defendant for the appeal)
Defendant: Richard Powers (identified as plaintiff on the appeal)
Plaintiff Claims: negligence, personal injuries, emotional distress, and loss of consortium
Defendant Defenses: Release
Holding: Both releases are valid
The plaintiff rented an ultralight from the defendant. For the rental, she signed two different releases. During take-off, the ultralight engine failed, and she crashed into a stack of bailed hail. The plaintiff sued.
The defendant argued the releases should be enforced, and the lawsuit dismissed. The plaintiff argued the language in the less inclusive release was the only one that should be applied. The defendant asked for the case to be dismissed. The trial court denied both motions. The parties then petitioned the appellate court to intervene and resolve the issue. The appellate court ordered the trial court to decide the issue. The trial court ruled dual releases voided each other, and neither could be used. Defendant then appealed the trial court ruling.
This also explains why the heading is the defendant at the trial court level being listed as the plaintiff at the appellate level. The defendant is the trial court. The plaintiffs are listed as the real parties in interest.
One of the releases was labeled “Waiver and Release From Liability and Indemnity Agreement.” The second release was identified as “Aircraft Rental and Student Instruction Agreement and Release from Liability.” The court stated both releases are “in a standard-size type, easily legible, with no fine print.”
Summary of the case
The plaintiff argued that the case of Conservatorship of Link, (1984) 158 Cal.App.3d 138, 205 Cal.Rptr. 513, should control because it had similar facts. Two releases were signed by the plaintiff. The first to enter the race track and the second release was signed to enter the pit area. The court threw out one of the releases because the print was in five-and-one-half-point type, too small to be read. The exculpatory language was hidden and convoluted.
The Link court throughout the second release because under California law the second “sign-in sheet release insufficiently clear, explicit and free from ambiguity to be enforceable.” The Link court went on to state “”[defendants’] use of two release agreements framed in different language created an ambiguous, confusing situation which must be resolved against defendants.”
Here the court found the two releases were both written correctly to meet California law on releases.
Neither the “Waiver and Release From Liability and Indemnity Agreement” (Appen. A) nor the “Aircraft Rental and Student Instruction Agreement and Release From Liability” (Appen. B) signed by plaintiff suffers from any of the defects relied upon by the Link court to void the exculpatory language found on the sign-in sheet considered in that case.
The court directed the trial court to set aside its order for the plaintiff. The defendant did not win outright though. The appellate court held that the defendant had asked for additional relief that it could not grant, because the trial court had not ruled on those issues.
So Now What?
As more and more operations use releases, this is going to become a common occurrence. A church group requires people going on a trip to sign a release. The raft company the church group goes to, asks the people to sign a release. If someone is injured, then you could be facing this same argument.
About the only way to deal with this situation is to work in advance and make sure that your documents either solely identify you as the person to be released or both parties make sure their releases do not conflict.
If you can, identify one release that is the best and use it.
If you are using two releases; Stop. Either figure out a way to combine the documents or make sure that one document does not eliminate the other or both documents.
There may be language you can use in your release to make sure it is superior to any other release or contract. However, if both releases have the language, then you are back in the same quandary.
What do you think? Leave a comment.
Copyright 2013 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Recemail@example.comJames H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#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, Ultra Light, Ultralight, California, Release, Rental,