Liability Releases: Gross Negligence

Eriksson v. Nunnink (Fourth District, January 10, 2011) — Cal.Rptr.3d —-, 2011 WL 60516

The parents of a 17 year old equestrian competitor who was killed when the horse she was riding tripped over a hurdle and fell on her, filed an action for wrongful death against their daughter’s riding coach. Although the girl and her mother had signed a liability release, assuming all risks and holding the coach harmless from any and all claims, the plaintiffs alleged the coach had unreasonably increased the risk of harm to the decedent by knowingly permitting her to ride a horse which she knew to be unfit because of prior falls and lack of practice.

The trial court granted the defendant’s motion on the grounds of primary assumption of the risk, but the court of appeal reversed, holding, inter alia, that triable issues of fact existed as to whether the defendant’s conduct was grossly negligent within the meaning of City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747:

“The principle rationale for refusing to enforce releases of liability for future gross negligence is that public policy should “ ‘discourage’ (or at least not facilitate) ‘aggravated wrongs.’ (citations) Thus, the Supreme Court approved of the rule adopted in a majority of states that “an agreement that would remove a party’s obligation to adhere to even a minimal standard of care, thereby sheltering aggravated misconduct, is unenforceable as against public policy.”
. . .
Here, the Erikssons’ complaint set forth the material factual allegation that Nunnink unreasonably increased the inherent risk of injury in horse jumping by allowing Mia to ride an unfit horse. The Erikssons further alleged that Nunnink concealed the horse’s unfitness from Karan.
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“Gross negligence,” as defined in Santa Barbara, means either a want of even scant care or an extreme departure from the ordinary standard of conduct. (citation) It “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results….” (citation.)

Here, Nunnink was an experienced eventing coach. She was fully aware of all the incidents involving Kory and the injuries he received. Thus, as earlier stated, triable issues exist as to the reasonableness of her conduct in allowing Mia and Kory to participate in the cross-country portion of the Galway event. Placing the disputed facts as to the unfitness of Kory in conjunction with disputed facts as to Nunnink’s knowledge and the representations she made to Karan, triable issues exist as to the presence of gross negligence. Viewing the evidence in the light most favorable to the Erikssons, Nunnink knew or should have known that Kory was unfit to jump. And, in spite of this knowledge, she affirmatively misrepresented facts relative to the condition of Kory that led to Mia’s participation in the cross-country event.
. . .
On the day of the cross-country jumping, Karan spoke to Nunnink twice, once in a barn and later in the warm-up ring At the barn, Nunnink told Karan not to worry, that Kory was “fine, he’s great, you know, he’s good.” She also assured Karan that if Kory did not look good, she would “pull him” from the competition.

Given all of these facts, triable issues exist as to whether Nunnink’s conduct was grossly negligent and therefore outside the scope of the release.”