Paying the Price (Twice)


Heilig v. Touchstone Climbing, Inc. (California–UNPUBLISHED)
(Rock Climber Falls During a Competition; Release Precludes Negligence Claims; No Allegations or Evidence of “Gross Negligence”; Defendant Entitled to Attorneys Fees Pursuant to Release)

The plaintiff was an experienced and professional rock climber. He was injured in a fall during a rock climbing competition at one of the defendant’s indoor “climbing gyms.” Plaintiff had climbed indoor climbing walls at some of defendant’s six facilities in the Bay Area during the several years preceding the incident. He had been intermittently a member of defendant’s facility, which entitled him to use any of its climbing facilities. Defendant had periodically required plaintiff to sign releases of liability in order to use their facilities.

Plaintiff had taken a few years off from competitive climbing, but had then joined the defendant at its Concord facility on February 4, 2004. At that time, he signed the most recent “Release of Liability and Assumption of Risk Agreement” (“Release”). The Release, in standard form language, specifies that the climber recognizes and assumes the significant risks of climbing, “both known and unknown, whether caused or alleged to be caused by the negligent acts or omission” of the defendant. Pursuant to the Release, plaintiff also agreed to release, discharge, and indemnify or hold harmless defendant from “any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity” or use of defendant’s equipment or facilities, including any “claims which allege negligent acts or omissions” of defendant.

Plaintiff did not read the Release before he signed it, but he was familiar with the terms from previously signed releases, and he recognized that if, upon his “visual inspection” of the facility he felt “the climbing gym was safe,” he “didn’t have an issue with it.” He did not indicate to any employees of defendant that he failed to understand the Release or request any explanation of its terms. Plaintiff expressed that his understanding of the Release was that he “was assuming any and all risks of injury attributed solely and entirely” to his “own physical activities while using [defendant’s] facility at the location” where he signed the agreement, but he did not agree to release defendant from liability based on its negligence.

In May of 2004, plaintiff entered a “bouldering” competition, which involves climbing without the protection of a rope to arrest a fall, at defendant’s San Jose facility. He was unfamiliar with that particular facility, but was already a member of defendant, such that he was not given a new release to sign for the competition. On plaintiff’s third attempt to climb the route, he fell and landed awkwardly. His left foot missed the padding below and struck the cement floor, resulting in severe breaks of his left foot and ankle.

Plaintiff filed a lawsuit for premises liability and negligence. Defendant filed a motion for summary judgment, and appellant sought leave to amend the complaint. The trial court granted defendant’s motion on grounds that defendant established the defenses of express and implied assumption of the risk. Defendant was thereafter awarded attorney fees in the amount of $48,773 based upon a provision in the Release. Plaintiff appealed.

Plaintiff argued that the release was invalid for two reasons. First, he claimed that defendant’s effort to “exculpate itself for this type of negligence” for known risks violated public policy as articulated in Civil Code Section 1668. Second, plaintiff argued that the Release was an “unconscionable contract of adhesion.” The court disagreed on both points.

The court initially applied California six factors test as set forth in Tunkl v. Regents of California (1963), and determined that the release did not implicate the public interest and did not violate public policy. Plaintiff argued that the public interest was implicated because if defendant was “permitted to exculpate itself for this type of negligence, it will simply continue to do so and will have no incentive to remedy the dangerous conditions.” However, the court was not convinced by the argument. The court explained that determining whether a release of liability affects the public interest, and is thus void as a matter of public policy, requires analysis of the transaction giving rise to the contract, not an analysis of the allegedly negligent conduct by the party invoking the release.

While the court agreed with plaintiff that the Release falls within the definition of an adhesion contract, it explained that an adhesive contract remains fully enforceable unless (1) all or part of the contract fell outside the reasonable expectations of the weaker party or (2) it was unduly oppressive or unconscionable under applicable principles of equity. the court found nothing in the Release to indicate that it failed to reflect the reasonable expectations of the parties. Nor did the court consider the terms of the Release substantively oppressive or unconscionable.

The plaintiff also argued that the Release was unreasonably broad in scope. In particular, he contended that the agreement did not clearly cover the defendant’s own negligent conduct. He also complained that the Release signed at the Concord facility several months earlier did not inform the user that it extended to use of another a facility constructed at a later date in the future, that being the San Jose facility where the incident occurred. However, the court concluded that the language of the Release was both broad and explicit. Through the Release, the plaintiff not only expressly acknowledged and assumed “all the risks” of rock climbing activities, both known and unknown, “whether caused or alleged to be caused by the negligent acts or omissions” of defendant, but also agreed to discharge, indemnify and hold harmless defendant “from any and all claims, demands, or causes of action, which are in any way connected with [his] participation in this activity” or his “use of [defendant’s] equipment or facilities, including” any “claims which allege negligent acts or omissions” of defendant. The agreement was also extremely expansive in scope as to time and place. The duration of the discharge from liability was “forever,” and the Release referred to “the use of any of [defendant’s] services or facilities, at this location and all other locations.” the court therefore concluded that the incident was reasonably within the contemplation of the parties and within the purpose for which the Release was signed.

The court noted that plaintiff had not made any claim of “gross negligence” at any stage of the proceeding. Nor had plaintiff contested the validity of the Release on the ground that it is unenforceable in an action for “gross negligence.” Further, the court found no evidence in the record suggesting “gross negligence” liability (i.e., “the want of even scant care or an extreme departure from the ordinary standard of conduct”).

On appeal, the court also confirmed that the doctrine of primary implied assumption of the risk was another basis to preclude liability. the plaintiff’s fall was a risk inherent in the competitive rock climbing activity that he pursued. The undisputed evidence proved that defendant did not increase the risk of harm beyond what was inherent in the sport through intentional or reckless behavior that was completely outside the range of the ordinary activity in the sport.

Finally, the court addressed the defendant’s request for attorneys fees pursuant to an indemnity and hold harmless provision in the Release. The plaintiff argued that the indemnity language was intended to apply only to third party claims, and not claims as between the two parties. However, the court analyzed the language and disagreed. The court noted that attorney fees provision did not explicitly refer to any third parties or claims. Instead, it specified that plaintiff agreed to indemnify and hold defendant harmless from any “attorney’s fees and costs” incurred “to enforce this agreement.” Any action to enforce the Release was necessarily limited to a dispute between the two parties to the agreement. Thus, the language of the attorney fees provision was reasonably interpreted to refer to the subject action. Therefore, the court concluded that the provision justified the award of attorney fees incurred by the defendant in connection with the lawsuit.

NOTE: This ruling is quite favorable to the sports and recreation industry. However, it is an unpublished opinion and is not cite-able legal authority. Nonetheless, it is a good template for arguments in future similar cases. A key lesson to be learned from the case is that indemnity provisions and attorneys fees provisions are not simply “throw in” provisions. If drafted clearly, they can be effective legal tools and protections. Another lesson to be learned is that these types of sports and recreation agreement can be drafted and applied broadly to encompass multiple events at multiple facilities over long periods of time. Again, to obtain such protections, it is a matter drafting clear an unambiguous documents. The vast experience of the plaintiff, and his knowledge relating to the industry, was probably an important factor considered by the court in denying his claims. It would have been very hard for this particular plaintiff to plead ignorance.

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