The hidden danger in fine print liability releases

Courts have traditionally looked with disfavor at contractual agreements that purport to exculpate a party for future violations of the law. Such arrangements can pose a conflict between contract and tort law. On the one hand is the freedom of individuals to limit their future liability; balanced against that are public policies underlying our tort system. As a general matter, the courts seek to maintain or reinforce a reasonable standard of care in community life and require wrongdoers -- not the community at large -- to provide appropriate recompense to injured parties. (City of Santa Barbara v. Superior Court ((2007) 41 Cal. 4^th 747, 754.)

Even though they are often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of risk that negates the defendant's duty of care, an element of the plaintiff's case. The result is that the release agreement relieves the defendant of a legal duty to the plaintiff and being under no duty to the plaintiff, the defendant cannot be charged with negligence. (Diamond v. Schweitzer (2025) 110 Cal. App. 5^th 866; Eriksson v. Nunnik (2015) Cal. App. 4^th 708, 719).

Elements of a release

Three elements are required for an enforceable release:

• The release must contain a clear, unambiguous, explicit and conspicuous expression of the parties' intent to release all liability for the injury;

• The alleged acts of negligence resulting in the injury are reasonably related to the object or purpose for which the release was given, and

• The release does not contravene public policy.

(Diamond v. Schweitzer (2025) 110 Cal. App. 5^th 866; Sweat v. Big Time Auto Racing Inc. (2004) 117 Cal. App. 4^th 1301, 1304-1305.)

An agreement's exculpatory provision may stand only if it does not involve or impair the public interest. (Tunkl v. Regents of University of California (1963) 60 Cal. 2^nd 92, 96-97. See also City of Santa Barbara v. Superior Court (2007) 41 Cal. 4^th 747; Booth v. Santa Barbara Biplanes, Inc. ((2008) 158 Cal. App. 4^th 1173.)

For a release to be valid and enforceable, a written release exculpating a tortfeasor from liability for future negligence or misconduct must clearly express the intent of the parties. The agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement. (Madison v. Superior Court (1988) 203 Cal. App. 3^rd 589, 598; Ferrell v. Southern Nevada Off-Road Enthusiasts, Inc. (1983) 147 Cal. App. 3^rd 309, 314-315, 317-318.) Whether a contract provision is clear and unambiguous is a question of law, not of fact. (Madison v. Superior Court (1988) 203 Cal. App. 3^rd 589, 598; Hulsey v. Elsinore Parachute Center (1985)168 Cal. App. 3d 333, 340.)

Generally speaking, the provision of the agreement containing the release ordinarily must be set in larger and bolder type than the rest of the agreement, which compels notice and must be distinguished from other sections of the document, that is, it must be conspicuous. (Conservatorship of the Estate of Link (1984) 158 Cal. App. 3^rd 138, 143. See also Madison v. Superior Court (1988) 203 Cal. App. 3^rd 589 (release in heavy bold type).) The usual, ordinary meaning of the term "bold" is "standing out prominently, markedly, conspicuous, eye-catching . . . .." (Harustak v. Wilkins (2000) 84 Cal. App. 4^th 208.)

Thus, an exclusion clause of an insurance policy was unenforceable because it was not presented in a conspicuous and plain fashion. The paragraph in question was printed in the same typeface as the remainder of the policy and was not likely to attract attention to it, as it was placed in the middle of the document. (Miller v. Elite Insurance Co. (1980) 100 Cal. App. 3^rd 739, 742.)

Likewise, in Leon v. Family Fitness  Center (#107)  Inc. ((1998) 61 Cal. App. 4^th 1227, 1231-1233), a release was ineffective because it was located in the middle of a health club's membership contract and was distinguished by neither the size of the print nor a suitable heading.

In Bennett v. United States Cycling Federation ((1987) 193 Cal. App. 3^rd 1485, 1485), the court declined to impose a rigid type size requirement on the release. The court stated that the significant release language must be readable and not so encumbered with other provisions of the release. Because the release language was practically the only language on the document, it was not invalid based on its print size.

An express release is not enforceable if it is not easily readable by persons of ordinary vision. The fact that the exculpatory language was printed in five and one-half point type and thus could not easily be read by persons of ordinary vision: "The five and one-half point type is so small that one would conclude defendants never intended it to be read. ... [T]he lengthy fine print seems calculated to conceal and not to warn the unwary." (Conservatorship of the Estate of Link (1984) 158 Cal. App. 3^rd 138, 141-142.) In two other cases, a release in 10-point type was found to be sufficiently clear and conspicuous and therefore enforceable against the person who signed it. (Hulsey v. Elsinore Parachute Center (1985) 168 Cal. App. 3^rd 333, 339- 340; Dorman v. International Harvester Co. (1975) 46 Cal. App. 3^rd 516, 522.)

In Okura v. United States Cycling Federation ((1986) 186 Cal. App. 3^rd 1462), the court held that an entry and release form signed by the plaintiff to enter a bicycle training race was valid even though the entire form was only 3.5 inches by 8 inches. The release was the only printing on the form other than some incidental information relating to the plaintiff-competitor. The court noted that the language of the release was not buried in a lengthy document or hidden among other verbiage; that the type was clear and legible; and, in light of the fact it had no other language to compete against it, its size was appropriate and the language was clear and unambiguous. (See also Bennett v. United States Cycling Federation (1987) 193 Cal. App. 3^rd 1485.)

To be valid and enforceable, a contract of release from negligence must clearly convey to the prospective releasor, as an ordinary person untrained in the law, that he or she is releasing the other party from liability for the releasor's personal injuries proximately caused by the negligence of the releasee. (Conservatorship of the Estate of Link (1984) 158 Cal. App. 3^rd 138, 143: Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal. App. 3^rd 309, 319-320.) The agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement. Exculpatory clauses are strictly construed against the party relying on them. (Celli v. Sports Car Club of America (1972) 29 Cal. App. 3^rd 713, 716.)

In Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., the court refused to enforce a release signed by the plaintiff before entering a dune buggy race, as the only exculpatory language was contained in a "convoluted 147-word sentence" which never mentioned words such as "release," "discharge," "waive" or the like. ((1983) 147 Cal. App. 3^rd 308, 319.) Similarly, in Conservatorship of Estate of Link, the court refused to enforce a release against a pit crewman who was injured during an automobile race, as the agreement was lengthy and the language purporting to exculpate the defendants from negligence was contained in the third paragraph in a convoluted 193-word sentence. ((1983) 158 Cal. App. 3^rd 138, 143).

A contrary result was reached in Hulsey v. Elsinore Parachute Center, wherein the court enforced a release agreement signed by the plaintiff before taking the defendant's skydiving "First Jump Course." The court found that the release in question was phrased in language clear to anyone and "it would be hard to imagine language more clearly designed to put a layperson on notice of the significance and legal effect of signing it." The court further stated that, "Instead of disguising the operative language in legalese, the defendant prepared its agreement in simple, clear and unambiguous language understandable to any layperson." ((1984) 168 Cal. App. 3^rd 333, 341.)

When 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. If a release of all liability is given, the release applies to any negligence of the defendant.

It is only necessary that the act of negligence which results in injury to the releasor be reasonably related to the object or purpose for which the release is given. The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. (Benedek v. PLC Santa Monica (2002) 104 Cal. App. 4^th 1351, 1356-1357; Paralift, Inc. v. Superior Court (1993) 23 Cal. App. 4^th 748, 757.)

In Diamond v. Schweitzer, ((2025) 110 Cal. App. 5^th 866), the plaintiff bought a "pit pass" that allowed him to get closer to the racing action. In the pit area, the plaintiff got involved in an altercation with another fan who punched him, causing him to fall and hit his head, cracking his head in three places upon impact, causing a subdural hematoma and internal bleeding.

The defendants argued that the injuries arose out of or were related to the racing activities. The defendants asserted that the fight occurred because there had been a race and those involved in the fight were with teams or were related to the drivers, and the argument arose over what had happened on the track. Hence, the defendants contended, and the court agreed that the fight would not have occurred without racing and was related to the racing activity.

Compare Diamond with Sweat v. Big Time Auto Racing. Inc. ((2004) 117 Cal. App. 4^th 1301) (collapse of spectator grandstand was not related to racing activity and therefore release did not apply).

Civil Code section 1668 provides that "[a]ll contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his or her 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."

In Whitehead v. City of Oakland ((2025) 17 Cal. 5^th 735), the plaintiff suffered a traumatic brain injury during a bicycle training race for a charity fundraiser. The plaintiff was injured when his front tire went down sharply into a large, deep pothole, causing him to flip forward over the front of the bike and hit the rear of his head on the pavement, sustaining severe head and brain injuries.

Prior to the race, the plaintiff had signed a comprehensive release form entitled: "AIDS/Lifecycle Training Ride. General Information and Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement
(Capitalization has been adjusted from the original all-caps version.)"

The release contained the following language: "For the avoidance of doubt, the release includes all bodily injury, death, and/or property damage I may suffer which arises or results (either directly or indirectly) from my participation in the event, including through any negligence of the releasees." The release included state and local government entities, of which the City of Oakland was one.

The plaintiff alleged that the defendant city had breached its statutory duty under Government Code section 835 to maintain a safe roadway for public use and the roadway was in a dangerous condition. The court concluded that an agreement to exculpate a party for future violations of a statutory duty to protect public safety is against the policy of the law under Civil Code section 1668, and therefore the release was unenforceable.

Gross negligence

Gross negligence has long been defined as either a want of even scant care or an extreme departure from the ordinary standard of care. (See, e.g., Eastburn v. Regional Fire Profection Authority (2003) 31 Cal. 4^th 1175, 1185-1186; Donnelly v. Southern Pacific Co. (1941) 18 Cal. 2^nd 863, 869.) Exculpatory agreements that purport to release liability for future gross negligence generally violate public policy and are therefore unenforceable. (City of Santa Barbara v. Superior Court (2007) 41 Cal. 4^th 747.) Hence, the Supreme Court concluded that an exculpatory agreement in the context of sports or recreational programs or services purporting to release liability for future gross negligence generally is unenforceable as a matter of public policy.

Common carriers

Civil Code section 2174 provides that "[t] he obligation of a common carrier cannot be limited by general notice on his part but may be limited by special contract." Section 2175 mandates that "[a] common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants." (See Donlon Bros. v. Southern Pacific Co. (1907) 151 Cal. 763, 770; Booth v. Santa Barbara Biplanes LLC. (2008) 158 Cal. App. 4^th 1173.)

Wrongful death

In Madison v. Superior Court ((1988) 203 Cal. App. 3^rd 589), plaintiffs brought a wrongful death action for the death of their 19-year-old son, who drowned while participating in a YMCA scuba diving training course. When he enrolled in the course, the decedent was given and signed a "NAUI Waiver, Release and Indemnity Agreement" in which he voluntarily released, discharged, waived and relinquished any and all actions and causes of action for, inter alia, wrongful death and agreed that under no circumstances would his heirs, executor, administrators and assigns prosecute and present any claim for wrongful death.

The court found that although the agreement expressly purported to release and discharge any action for wrongful death, the decedent had no power or right to waive that cause of action on behalf of his heirs. The court noted the longstanding rule that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent. (Earley v. Pacific Electric Railway Co. (1917) 176 Cal. 79, 81; Garcia v. State of California (1967) 247 Cal. App. 2^nd 814, 816.)

However, the plaintiffs in a wrongful death action are subject to any defenses which could have been asserted against the decedent, including an express agreement by the decedent to waive the defendant's negligence and assume all risks. (Madison v. Superior Court, supra, 203 Cal. App. 3^rd at 597. See also Scroggs v. Coast Community College Dist. (1987) 193 Cal. App. 3^rd 1399; Coates v. Newhall Land and Farming Inc. ((1987) 191 Cal. App. 3^rd 1.)

Failure to read release

A plaintiff cannot avoid the application of an otherwise valid release by claiming that he or she signed it without reading it, the well-established rule being that, in the absence of fraud, overreaching or excusable neglect, one who signs an instrument may not avoid the impact of the terms on the ground that he failed to read it before signing. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal. 3^rd 699, 710; Hulsey v. Elsinore Parachute Center (1985) 168 Cal. App. 3^rd 333, 339.)

In Guido v. Koopman ((1991) 1 Cal. App. 4^th 837), the plaintiff alleged that the operator of a horseback riding academy gave her a release to sign, saying "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."

The plaintiff signed the release without reading it, then brought suit after she was injured when she was thrown from a horse during a riding lesson. The plaintiff was a practicing attorney who used releases in her practice. The court stated: "In essence, [plaintiff] 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 rely on an alleged misrepresentation, the knowledge, education and experience of the person claiming reliance must be considered. Under these circumstances, we conclude as a matter of law that any such reliance was not reasonable." (Guido v. Koopman, supra, 1 Cal. App. 4^th at 840-841.)

The plaintiff also contended that she did not think that being thrown off a horse was an inherent risk of horseback riding. The court rejected this argument, stating "such risk is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse." (Guido v. Koopman, supra, 1 Cal. App. 4^th at 841-842.)

In Booth v. Santa Barbara Biplanes, LLC, supra, (158 Cal. App. 4^th 1173), the plaintiffs claimed that they "hurriedly signed a release" to go on a sightseeing trip of Santa Barbara in defendant's biplane. However, the court found that it was undisputed that they signed the release 30 minutes before the flight, and "[t]here was no surprise element." Moreover, the plaintiffs could have asked for a refund of their money at any time before the flight.