CACI 451 Affirmative Defense—Contractual Assumption of Risk

New September 2003; Revised December 2011

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This instruction sets forth the affirmative defense of express or contractual assumption of risk. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120 Cal.Rptr.3d 90].) It will be given in very limited circumstances. Both the interpretation of a waiver agreement and application of its legal effect are generally resolved by the judge before trial. The existence of a duty is a question of law for the court (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [183 Cal.Rptr.3d 234]), as is the interpretation of a written instrument if the interpretation does not turn on the credibility of extrinsic evidence. (Allabach v. Santa Clara County Fair Assn., Inc. (1996) 46 Cal.App.4th 1007, 1011 [54 Cal.Rptr.2d 330].)

However, there may be contract law defenses (such as fraud, lack of consideration, duress, unconscionability) that could be asserted by the plaintiff to contest the validity of a waiver. If these defenses depend on disputed facts that must be considered by a jury, then this instruction should also be given.

Express assumption of risk does not relieve the defendant of liability if there was gross negligence or willful injury. (See Civ. Code, § 1668.) However, the doctrine of primary assumption of risk may then become relevant if an inherently dangerous sport or activity is involved. (See Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1081 [122 Cal.Rptr.3d 22].)

If there are jury issues with regard to gross negligence, include the bracketed language on gross negligence. Also give CACI No. 425, “Gross Negligence” Explained. If the jury finds no gross negligence, then the action is barred by express assumption of risk unless there are issues of fact with regard to contract formation.

•Contract Releasing Party From Liability for Fraud or Willful Injury is Against Public Policy. Civil Code section 1668.

•“[P]arties may contract for the release of liability for future ordinary negligence so long as such contracts do not violate public policy. ‘A valid release precludes liability for risks of injury within the scope of the release.’ ” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 877 [208 Cal.Rptr.3d 792], internal citations omitted.)

•“With respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 27 [236 Cal.Rptr.3d 682], original italics.)

•“Express assumption occurs when the plaintiff, in advance, expressly consents … 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 … being under no duty, [the defendant] cannot be charged with negligence.” (Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 764 [276 Cal.Rptr. 672], internal citations omitted.)

•“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.” (Eriksson, supra, 233 Cal.App.4th at p. 719.)

•“[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.” (Knight v. Jewett (1992) 3 Cal.4th 296, 308–309, fn. 4 [11 Cal.Rptr.2d 2, 834 P.2d 696].)

•“ ‘ “It is only necessary that the act of negligence, which results in injury to the releaser, be reasonably related to the object or purpose for which the release is given.” ’ … ‘An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release.’ ” (Eriksson, supra, 233 Cal.App.4th at p. 722.)

•“Although [decedent] could not release or waive her parents’ subsequent wrongful death claims, it is well settled that a release of future liability or express assumption of the risk by the decedent may be asserted as a defense to such claims.” (Eriksson, supra, 233 Cal.App.4th at p. 725.)

•“[E]xculpatory clause which affects the public interest cannot stand.” (Tunkl v. Regents of Univ. of California (1963) 60 Cal.2d 92, 98 [32 Cal.Rptr. 33, 383 P.2d 441].)

•“In Tunkl, our high court identified six characteristics typical of contracts affecting the public interest: ‘ “[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” ’ Not all of these factors need to be present for an exculpatory contract to be voided as affecting the public interest.” (Hass, supra, 26 Cal.App.5th at p. 29, internal citations omitted.)

•“The issue [of whether something is in the public interest] is tested objectively, by the activity’s importance to the general public, not by its subjective importance to the particular plaintiff.” (Booth v. Santa Barbara Biplane Tours, LLC (2008) 158 Cal.App.4th 1173, 1179–1180 [70 Cal.Rptr.3d 660], original italics.)

•“[P]ublic policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care. Applying that general rule here, we hold that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095], original italics.)

•“ ‘ “[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage.” ’  Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 359 [235 Cal.Rptr.3d 716].)

•“ ‘ “A written release may exculpate a tortfeasor from future negligence or misconduct. [Citation.] To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ [Citation.] The release need not achieve perfection. [Citation.] Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. [Citations.]” ’ ‘ “An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.]” ’ ” (Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1467 [110 Cal.Rptr.3d 112], original italics, internal citations omitted.)

•“Unlike claims for ordinary negligence, products liability claims cannot be waived.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 640 [184 Cal.Rptr.3d 155].)

•“Since there is no disputed issue of material fact concerning gross negligence, the release also bars [plaintiff]’s cause of action for breach of warranty.” (Grebing, supra, 234 Cal.App.4th at p. 640.)

•“Generally, a person who signs an instrument may not avoid the impact of its terms on the ground that she failed to read it before signing. However, a release is invalid when it is procured by misrepresentation, overreaching, deception, or fraud. ‘It has often been held that if the releaser was under a misapprehension, not due to his own neglect, as to the nature or scope of the release, and if this misapprehension was induced by the misconduct of the releasee, then the release, regardless of how comprehensively worded, is binding only to the extent actually intended by the releaser.’ ‘In cases providing the opportunity for overreaching, the releasee has a duty to act in good faith and the releaser must have a full understanding of his legal rights. [Citations.] Furthermore, it is the province of the jury to determine whether the circumstances afforded the opportunity for overreaching, whether the releasee engaged in overreaching and whether the releaser was misled. [Citation.]’ A ‘strong showing of misconduct’ by the plaintiff is not necessary to demonstrate the existence of a triable issue of fact here; only a ‘slight showing’ is required.” (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 563–564 [188 Cal.Rptr.3d 228], internal citations omitted.)

•“Plaintiffs assert that Jerid did not ‘freely and knowingly’ enter into the Release because (1) the [defendant’s] employee represented the Release was a sign-in sheet; (2) the metal clip of the clipboard obscured the title of the document; (3) the Release was written in a small font; (4) [defendant] did not inform Jerid he was releasing his rights by signing the Release; (5) Jerid did not know he was signing a release; (6) Jerid did not receive a copy of the Release; and (7) Jerid was not given adequate time to read or understand the Release. [¶] We do not find plaintiffs’ argument persuasive because … there was nothing preventing Jerid from reading the Release. There is nothing indicating that Jerid was prevented from (1) reading the Release while he sat at the booth, or (2) taking the Release, moving his truck out of the line, and reading the Release. In sum, plaintiffs’ arguments do not persuade us that Jerid was denied a reasonable opportunity to discover the true terms of the contract.” (Rosencrans, supra, 192 Cal.App.4th at pp. 1080–1081.)

•“Whether a contract provision is clear and unambiguous is a question of law, not of fact.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250 Cal.Rptr. 299].)

•“By signing as [decedent]’s parent, [plaintiff] approved of the terms of the release and understood that her signature made the release ‘irrevocable and binding.’ Under these circumstances, the release could not be disaffirmed. [¶] Although [plaintiff]’s signature prevented the agreement from being disaffirmed, it does not make her a party to the release.” (Eriksson, supra, 233 Cal.App.4th at p. 721.)