01 Oct In The Law, Words Matter.
Lawyers are trained, from the first day of law school and continuing throughout their careers, to be precise with their words, both spoken and written. Attention to verbal precision — or the lack thereof — often spells the difference between winning and losing in litigation cases.
Consider the tragic case of Huverserian v. Catalina Scuba (2010) 184 Cal. App. 4th 1462 California is a mecca for recreational enthusiasts, and people who go skiing, skydiving, boating, and the like, are often asked to sign a written release of liability in favor of a venue operator (such as a ski resort), or an equipment vendor who supplies recreational equipment (such as a canoe with life preservers). Established law allows people to release others from future liability for negligence, but not for intentional or reckless acts. Thus, theoretically, if you get injured because a ski resort negligently failed to groom the runs, then the release that you signed will prevent you from suing for the damages you suffered — provided that the release document has the right language in it. To be enforceable, release agreements must contain language that is “clear, unambiguous, and explicit,” in the words of the reported cases.
Over the years, such exculpatory releases have been refined through the process of “trial and error” in court cases; standard “form” releases have now proliferated to the point of being easily available on the internet and in stationery stores. Nevertheless, problems can arise — or, depending on how you look at it, opportunities for the recovery of damages can present themselves — if the drafter of the “negligence” release is himself negligent with the words of the release.
In the Huverserian case, father and son rented scuba equipment and signed a standard release of liability in favor of the scuba rental company. The “releasing” language in the document was ironclad, so when the father tragically perished some time after running out of air during a dive, the scuba company relied on that “releasing” language to defeat the family’s wrongful death lawsuit. The trial judge agreed that the release language was dispositive and sided with the defendant, entering a “summary judgment” on grounds that the case presented no issues that needed to be decided by a jury.
But the Court of Appeal saw things differently.
As it turned out, the “releasing” language may have been ironclad, but the drafter of the document made the mistake of including title headings above the various sections of the document. And the heading above the “ironclad” exculpatory language stated — in bold, underlined words — that what followed was a “liability release and assumption of risk . . . for boat dives or multiple day rentals.” But father and son had only signed up for a one-day rental, and they entered the water from the shore, not from a boat. The Court of Appeal reversed the summary judgment, reasoning that “a person renting equipment for a single day, not to be used on a boat dive, would read the emphasized language and reasonably determine that it did not apply to him or her, and conclude that by signing the agreement, he or she had only agreed to the rental terms, with no release of liability intended.”
The existence of those seven words in the title heading of the (otherwise ironclad) release document made all the difference in the Huverserian case. This is a cautionary tale for entrepreneurs and their counsel: the law does not look kindly upon careless scriveners!