How often have you signed up for a gym membership, signing assumption of risk and waiver of liability forms without reading them. What would you do even if you did read them. Would you really not join a gym if it simply said that you assumed all of the risks that were known and unknown at the time of the signing of the document?
The law of assumption of the risk in California has been morphing into a very strict application as against the consumer. Several well-known cases have demonstrated a continued restriction on the ability of a person to file a lawsuit against the company if they have signed an assumption of the risk document. The most bizarre of these examples was a case involving a television set mounted improperly on the wall of a gym. As the patron was walking by, the television set fell on him causing him significant injury. Because he had signed a waiver and assumption of liability risk form with this well-known Gym, the court concluded that he’d waived his right to bring a lawsuit. I doubt any of you would have anticipated and injury from poor installation of a television, and when it fell on your head causing serious injuries as you are walking by, you would agree i when you signed assumption of risk documents, that you would not sue. In fact you probably would assume that the facility is under obligation to make it safe for your use.
There are several excellent defenses to assumption of the risk but they are hard to enforce. It takes a very skilled personal injury attorney to advocate waiver of assumption of the risk. In several high-profile cases that this office has handled over the years, we have been successful in avoiding assumption the risk claims. There are several keys to unlock challenges to signed assumption the risk forms
1. Inspect carefully the release and assumption of risk document to determine whether it is too vague, too broad, or does not comply with the language consistent with cases on the subject
2. Make sure that the defendant can produce the actual signed copy of the assumption of the risk document. We have found that there are numerous occasions where there is a subsequent record of the signing of such a document, but the original document cannot be produced.
3. Make sure that the assumption of risk document was signed by the actual client who was injured. In a gym membership for instance, a spouse who signs up both spouses may be precluded from bringing in action, but the non-signing spouse may still have rights.
In a recent case of Kindrich v Long Beach Yacht Club 167 Cal App 4th1252, a man was injured when disembarking a boat, causing his broken leg. The lower court held that this man could not sue, because he had executed an assumption of the risk document, and was precluded from being bringing an action. However on appeal,, the Court reversed advising that the injuries were actually due to something other than sports and sporting activities, therefore the traditional rules of assumption of the risk would be applicable, and are far less severe than gym membership cases such as the one that was noted above.
If you have a personal injury case and you’ve signed an assumption of the risk document, consult a personal injury attorney immediately to advance your cause. Don’t give any statements to the other side until you’ve consulted with this attorney, to ensure that all of your rights are protected. As always feel free to contact our a truck or personal injury attorney for a free consultation at 1 888 752 7474.