California’s liability waiver law refined by ruling

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.

But her mother also said that Katie was a good swimmer and should be permitted in the pool.

Because of the history of seizures, the camp assigned a counselor, a college student named Veronica Malong, to watch Katie during swimming sessions. Malong had worked for one year as a special education aide at the middle school Katie attended.

On the first day the camp offered swimming in 2002, Katie swam without a problem. On the second day, she drowned.

One hour before her death, she had suffered a mild seizure that lasted a few seconds. Malong said she sent another counselor to report the incident to a supervisor. The supervisors, however, later said they had received no such information.

Malong said she watched Katie for 45 minutes after the seizure and decided the child was fit to swim. She sat on the side of the pool near the lifeguard, watching the deep end. There were about 300 children in the pool. Malong watched Katie jump off the diving board and swim to the side and then told Katie to get out of the pool to rest.

Malong then allowed Katie to dive back into the water. She said she watched Katie dive and bob to the surface and begin to swim toward the edge of the pool. Malong said she turned her head for no more than 15 seconds and when she looked back, she couldn’t find Katie.

She and others looked for Katie for two to five minutes before an air horn was blown and the pool was evacuated. Lifeguards plucked Katie from the bottom of the pool. She died the next day.

Katie’s parents filed a wrongful-death lawsuit. The city tried to have the lawsuit dismissed on the grounds that Katie’s mother had signed the waiver releasing the camp from liability.

The trial court and the intermediate appeals court ruled against the city. The Court of Appel said that the waiver may have protected the camp from ordinary negligence but not from gross negligence, and that Katie’s parents had presented enough evidence that a jury could possibly find evidence of gross negligence.

The Supreme Court agreed that waivers do not protect against gross negligence, allowing the lawsuit to proceed. There can be no further appeal because the state high court has the last word on matters of state law.

Court research

Chief Justice George wrote that court staffers were assigned to research whether recreational activities dried up in states with laws permitting victims in such cases to sue for even ordinary negligence.

He said the statistics did not indicate that recreational opportunities dropped because of higher liability risks.

In fact, he said, most states refuse to recognize waivers in cases of gross negligence.

Although California has been among the states to enforce waivers signed by parents whose children participated in recreation, “that position apparently represents a minority view,” he said. He noted that Vermont has refused to enforce waivers for recreational skiing and racing.

Many groups sided with Santa Barbara in the case, including the League of California Cities; the Sierra Club; the International Health, Racquet and Sportsclub Assn.; Bally Total Fitness Corp.; 24 Hour Fitness Corp.; the National Assn. of Stock Car Racing; the California Speedway Corp.; and the California Park & Recreation Society.

George was joined in his opinion by Justices Kathryn Mickle Werdegar, Ming W. Chin and Carol A. Corrigan. Justice Joyce L. Kennard agreed with the result but wrote separately because she reached it by a different legal analysis. Justice Carlos R. Moreno signed her opinion.

Justice Marvin R. Baxter dissented from what he called the court’s “sweeping” decision.

“I acknowledge the general concern that grossly negligent misconduct not go unpunished,” Baxter said. But, he said, “the importance of integrating developmentally disabled children into mainstream society through programs like Adventure Camp cannot be overstated.”

Baxter said the release signed by Maureen Janeway did not take away her control over her child’s activities. The parents “authorized her to swim and to dive and opted not to require her to wear a flotation device,” Baxter wrote.

Maureen Janeway, 52, a marketing consultant who also is president of a nonprofit center that provides services for disabled people, choked up when asked about Baxter’s comment and said, “I am not going there.” She said she had just put a pink rose on her daughter’s grave.

“Though the court’s ruling doesn’t bring her back to us, it does guarantee that no other family has to go through this,” said Janeway, who has a son in college. “As she did when she was with us, Katie continues to touch all of our lives.”

Santa Barbara City Atty. Stephen Wiley said that the city now requires a more extensive questionnaire for its camps for developmentally disabled children and that an assessment team decides whether a child’s doctor should be consulted.

Wiley said that the camp personnel were not fully aware of Katie’s medical history and that he believes that the facts will show only ordinary, not gross, negligence. He said the ruling will not affect school districts because they are governed by other legal rules, but he said the decision defeats the purpose of releases.

“If I am going to be looking at a jury trial merely at allegations of gross negligence, my release hasn’t done me any good,” he said. “A release is designed to preclude the litigation altogether.”