Woodland Hills Personal injury attorney Barry P. Goldberg is regularly consulted for almost every imaginable way people are injured. Sometimes potential clients are very seriously injured in voluntary activities they have undertaken for their own enjoyment or advancement. However, many of these “activities” can be quite dangerous and serious injury or death can result. Also, participants often sign “liability waivers” as a pre-requisite of engaging in these activities.
Some of the activities range from simply working out at a health club, to scuba diving and sky diving. Because whenever there is a serious injury, it is always something the participant did not anticipate. So, the next step is to look around for the reasons why the injury occurred. There was probably some negligence or malfeasance somewhere. However, in order to recover, the participant must allege and prove “gross negligence.”
Negligence and Express Assumption of Risk
“‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)
When faced with a lawsuit, defendants will assert the release agreement waived any claims by a plaintiff against them for negligence pertaining to the particular class or activity. “While often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case. ‘[C]ases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk . . .. “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone . . .. The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” [Citations omitted.]” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719.)
Essentially, when there is a release agreement, defendants are relieved of a legal duty as to ordinary negligence pertaining to the class or activity. Accordingly, as a plaintiff’s attorney, we usually address whether defendants potentially are subject to liability based on gross negligence.
Liability for gross negligence cannot be released via an express contractual provision.
“‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘“‘want of even scant care’”’ or ‘“‘an extreme departure from the ordinary standard of conduct.’”’ [Citations omitted.]” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 (Santa Barbara).) Gross negligence is not a separate and distinct cause of action from negligence. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3 (Jimenez).) Rather, gross negligence is distinct from ordinary negligence by degree. (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881 (Anderson).) Liability for gross negligence cannot be released via an express contractual provision. (Santa Barbara, supra, 41 Cal.4th at pp. 750-51; Jimenez, supra, 237 Cal.App.4th at pp. 554-55.)
Typically, whether conduct amounts to gross negligence is a triable issue of fact. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.) However, “[w]here the evidence on summary judgment fails to demonstrate a triable issue of material fact, the existence of gross negligence can be resolved as a matter of law.” (Anderson, supra, 4 Cal.App.5th at p. 882; Chavez v. 24 Hour Fitness USA, Inc., supra, 238 Cal.App.4th at p. 640.)
Defendants often contend their alleged conduct does not rise to the level of gross negligence, asserting that their conduct does not demonstrate “want of even scant care” or “an extreme departure from the ordinary standard of conduct.”
“[Gross negligence] ‘connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results . . ..’ [Citation omitted.]” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 825, 857.) “‘“[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”’ amounts to ordinary negligence. [Citation omitted.]” (Anderson, supra, 4 Cal.App.5th at p. 881.)
In most cases, defendants can argue that they took some reasonable steps towards a reasonable standard of conduct. Therefore, they contend that the accident or injury was as a result of “ordinary negligence.” In order to establish “gross negligence” an experienced personal injury lawyer will look for conduct that is outrageous which no defendant would ever do which exposes the participant to significant injury. Expert witness testimony is almost always required to prove gross negligence and it is helpful to refer to standards, guidelines and regulations in order to prove gross negligence.
If you or a loved one was injured during a class or an activity, it is important to hire an experienced trial lawyer that understands the gross negligence standard before making a claim for damages or death.