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Waivers of liability are a common contractual tool that most, if not all, experience-based enterprises make their patrons sign so that in the case of injury, companies can point to and say, “You assumed the risk”. In California, waivers of liability are generally enforceable, and those claiming injuries will generally be barred from recovering damages. However, these waivers do not offer absolute protection. In the recent case Ziegler v. The Bay Clubs Company, LLC, et al., a plaintiff prevailed in her negligence claim against a gym despite having signed a waiver of liability. In fact, the jury trial lasted seven days, required defendant to call on an orthopedic surgeon, an engineer, and even a handwriting expert at trial. How was this possible when the patron-plaintiff had signed a waiver?

In Ziegler, plaintiff Patricia Ziegler visited the Bay Clubs Company’s gym in El Segundo. She attempted to take a shortcut between two treadmills and tripped as her foot got stuck on an unsecured wireway lid between the two machines. Plaintiff sustained a fractured and dislocated elbow, and filed suit alleging negligence per se and gross negligence. During trial, plaintiff argued that the defendant committed negligence per se by violating a building code that prohibited placing electrical wireways that were greater than 30 inches wide. Defendant steadfastly maintained that the plaintiff’s claim was barred because she had signed a waiver of liability. The defendant further argued that the space between treadmills was not meant to be an aisle. Prior to trial, plaintiff made a settlement demand of $200,000.00. This was later increased to $495,000.00. After 3 days of deliberations at trial, the jury awarded plaintiff $636,098.18. However, the jury apportioned fault, stating that plaintiff was 25% at fault, and reduced the net award accordingly.

California Jury Instruction No. 451 instructs jurors to consider whether the defendant’s negligence amounted to negligence per se or gross negligence. If the jury finds that the defendant’s actions amounted to gross negligence or negligence per se, the waiver of liability will not bar the plaintiff from recovering damages. In Ziegler’s case, the jury received a California Jury Instruction No. 451 on a negligence per se theory based on the building code violation of placing wireways in aisles.

Forewarned is forearmed. Businesses cannot blindly point to a waiver of liability in the instance where a patron gets injured on your premises. There are legal roadways that plaintffs can take to get around liability waivers, to recover for their injuries and other categories of legal damages. While it is important to make sure your business meets the rules and regulations to keep your premises safe, it is vital to have competent attorneys that can limit your exposure should it come to that.