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Wednesday, July 13, 2005

Cases: Rafting release enforceable

California_flag_10 A whitewater rafting company's release form, knowingly signed by a participant, bars a wrongful death action based on negligence under California law, according to a recent unpublished decision by the U.S. Court of Appeals for the Ninth Circuit.

In the case Sandra Schoeps was killed while on a whitewater rafting expedition organized by Whitewater Adventures.  Her parents, Hubert and Christiane Schoeps, sued for negligence, breach of contract, and intentional misrepresentation.  The district court granted summary judgment because Sandra had signed a full liability release before going on the trip.  The Court of Appeals affirmed:

California law precludes recovery for Sandra's personal injuries because she expressly assumed the risk of harm when she signed Whitewater Adventures' liability release form before participating in the whitewater rafting activity.  On the whole, the release is in plain language, contains a clear and comprehensive outline of the kinds of harm that may occur, and has the clear import of relieving Whitewater Adventures of liability for negligence or other harms.

Moreover, we conclude that the liability release was not unconscionable.  Substantively, it is not unreasonable or unexpected for an organizer of adventure sports to reallocate risk to the participants through a liability waiver.  Procedurally, there were no hidden terms in the liability release, and the most oppressive aspect of the situation was that if Sandra refused to sign it she could not go with the group on the river and might be stuck without transportation in an isolated area. But this was not caused by any action or inaction on Whitewater Adventures' part; nor is there any evidence in the record that Denyse Caven, who had driven Sandra to the meeting point, would have been unwilling to leave with Sandra or to let Sandra drive herself, nor that no other transportation was available. The district court recognized that Sandra had only a few minutes to decide whether to sign the release and would have lost her pre-paid ticket price had she refused to sign. However, this is not sufficient to constitute oppression or lack of meaningful choice, particularly insofar as Sandra had been given a brochure before the rafting trip in which Whitewater Adventures stated: "we require all trip participants to sign a liability release waiver before embarking on your trip."  (Citations omitted.)

Schoeps v. Whitewater Adventures LLC, 2005 U.S. App. LEXIS 13181 (9th Cir., June 29, 2005).

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