Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 615955 of Stanislaus County. David G. Vander Wall, Judge.
Law Office of Michael J. Dyer, Michael J. Dyer for Plaintiff and Appellant.
Linneman Law Offices, Alfred L. Whitehurst for Defendants and Respondents Bill Collins and Arm World Promotions. Porter Scott, Tom H. Bailey and Lindsay A. Golding, for Patterson Apricot Fiesta, Inc., Defendant and Respondent.
OPINION
Ardaiz, P.J.
Appellant Vincent Jamison, then a 22-year-old student, entered an arm wrestling competition at the Patterson Apricot Fiesta. He signed a “Release” which stated “I do hereby assume full responsibility for any and all damage, injuries or loses [sic] that I may sustain” and “I hereby waive all claims against the State of Calif., ArmWorld Promotions (AWP), ... Operators or Sponsors... for injuries that I may sustain.” In his first and only match he suffered a broken arm. He sued the operators of the arm wrestling competition (respondents Arm World Promotions and Patterson Apricot Fiesta, Inc.) for negligence. The superior court granted the respondents’ motions for summary judgment and entered judgment in favor of respondents.
APPELLANT’S CONTENTIONS
Appellant contends that the written release he signed did not release the respondent’s from liability for the injury he sustained during the arm wrestling match and that he did not assume the risk of a broken arm when he entered into and engaged in an arm wrestling competition. As we shall explain, we find appellant’s contention to be without merit. We will affirm the judgment.
FACTS
The Paterson Apricot Fiesta is an annual event held in the town of Patterson on the weekend after Memorial Day. Patterson Apricot Fiesta, Inc. organizes such events as a craft fair, a petting zoo, a hot air balloon launch, a parade, and an arm wrestling competition. The arm wrestling competition is a traditional event at the Fiesta that has occurred since 1987. The competition is organized and operated by AWP in conjunction with Patterson Apricot Fiesta, Inc.
AWP organizes and operates several arm wrestling competitions in various locations throughout any given year. On Saturday, June 4, 2005, appellant went to the Patterson Apricot Fiesta with his then-fiancée and her parents. Appellant was initially placed in the “Amateur” category because he had never been in such a competition before. He signed a one-page document entitled “2005 Official Entry Form Apricot Fiesta.” The form contained spaces or lines to be completed with the competitor’s standard identifying information (name, address, phone number, age, occupation and e-mail address). Directly below this, in the center of the form, was the following language, followed by a signature line:
“RELASE
“I, the undersigned, do hereby voluntarily submit my application for he participation in the Patterson Apricot Festa [sic] Armwrestling Championships. I do hereby assume full responsibility for any and all damage, injuries or loses that I may sustain or incur while attending or participating and I hereby waive all claims against the State of Calif. ArmWorld Promotions (AWP), National Armwrestling League (NAL), City of Patterson, Sierra Beverage, County Fair, their agents, Officers, Servants, Employees, Promoters, Operators or Sponsors of said individually or otherwise, for injuries that I may sustain.” !(CT 208.)!
Appellant signed and dated the “Release” appearing on the form. A copy of the form (with appellant’s address, phone number and e-mail address blocked out by us) appears as APPENDIX at the end of this opinion. The form also shows appellant’s “Official Weight” of 173.5 pounds, and shows that he was placed in the “155-176” pound category for “Men’s Right” (presumably meaning right-handed). The form includes an “Officials Initials” (which look like the written letters “JM”). The “Amateur” category is circled and crossed out, and the “Professional” category is circled. At his deposition appellant explained that he switched from the amateur to the professional category for the chance to win money. The professional category had a higher entry fee and provided a chance to win money. The amateur category had no prize money.
A declaration of Bill Collins, the owner of AWP, stated that for appellant’s first match appellant was randomly assigned to wrestle a competitor who was an experienced arm wrestler. The match “was overseen by two experienced referees employed by ARM WORLD PROMOTIONS.” During the match, appellant’s arm broke. The Collins declaration stated that Collins witnessed the match, and that “[n]o fouls occurred before, during or after the match.” There was no evidence to the contrary. The parties’ statements of undisputed fact did not include any agreed-upon description of appellant’s injury other than that it was a broken arm. Appellant’s declaration described his injury as “a spiral torque facture [sic] of the humerus.” The humerus is “the bone of the upper arm or forelimb, extending from the shoulder to the elbow.” (Webster’s New World Dict. (2d college ed. 1982, p. 684.) Appellant’s declaration also stated that he had two surgeries on the arm, including one which involved insertion of a plate, screws and cables around the bone. The Collins declaration further stated:
“9. Arm wrestling is a competitive endeavor in which two opponents exert pressure against each other’s hands to determine which competitor has greater arm strength. Each competitor must keep their elbow on the table, with the goal of forcing their opponent’s hand to touch the table.
“10. A known risk of arm wrestling is that a competitor’s arm might break under the strain of competition. Broken arms occur despite rules that govern arm wrestling in the attempt to limit injuries. These rules are read to all competitors prior to every event, and all competitors are given the opportunity to ask questions after the rules are read.”
Appellant submitted no evidence which directly disputed the defendants’ evidence in any significant way. With regard to Collins’ assertion that a possible broken arm is a “known risk” of arm wrestling, appellant stated that he himself did not know of this risk and that “I believed the worst injury I could suffer was a pulled or strained muscle.” With regard to Collins’ assertion that “rules are read to all competitors prior to every event, ” appellant’s declaration asserted that “[a]t no time was [I] warned of the risks of arm wrestling or given any information regarding the rules or technique of arm wrestling.” This declaration does not appear to be consistent with appellant’s prior deposition testimony that “there was someone from Arm World Promotions that went through a list of rules and things to do and not to do for the competition, ” but in any event the evidence was undisputed that no rules were broken.
Respondent Patterson filed its motion for summary judgment before respondents Collins and Arm World Promotions filed theirs, but both motions relied on the same evidence, the same memorandum of points and authorities (Collins and Arm World were permitted to adopt by reference Patterson’s memorandum of points and authorities), and identical statements of undisputed facts. Appellant was permitted to file one joint opposition to both motions. The evidence presented on the motions was as described above. The court granted both motions and entered judgment in favor of the respondents. !CT 233-234.)!
STANDARD OF REVIEW
“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “[W]e take the facts from the record that was before the trial court when it ruled on that motion.” (Yanowitz v. L’Oreal, USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.’” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1035.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal, USA, Inc., supra, 36 Cal.4th at p. 1037.)
In this case appellant alleged that respondents were negligent in allowing him to compete against a significantly more skilled and experienced opponent and in failing to warn him that he was risking serious injury by competing. Respondents’ motions attempted to (and did) establish that there was no triable issue of material fact and that they were entitled to judgment as a matter of law because there was no factual dispute that they had a complete defense -- that appellant had waived any claims for whatever injury he might sustain by participating in the competition. “For purposes of motions for summary judgment and summary adjudication:... (2) A defendant... has met his or her burden of showing that a cause of action has no merit if that party has shown... that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p).)
APPELLANT VALIDLY WAIVED ALL CALIMS AGAINST RESPONDENTS FOR INJURIES CAUSED BY THEIR ALLEGED NEGLIGENCE
The applicable law is neatly summarized and restated in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, where the court stated:
“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1101 [].) A release may negate the duty element of a negligence action. Contract principles apply when interpreting a release, and ‘normally the meaning of contract language, including a release, is a legal question.’ (Solis v. Kirkwood Resort co. (2001) 94 Cal.App.4th 354, 360 [].) ‘Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, “construction of the instrument is a question of law, and the appellate court will independently construe the writing.”’ (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754 [].) ‘It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[‘s] cause[] of action.’ (Allabach v. Santa Clara County Fair Assn., supra, 46 Cal.App.4th at p. 1101.) … [¶]
“A written release may exculpate a tortfeasor from future negligence or misconduct. (Bennet v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490 [].) To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ (Ibid.) The release need not achieve perfection. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 755.) Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. (Lune v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739 []; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1373 [].)
“The determination f whether a release contains ambiguities is a matter of contractual construction. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at pp. 754-755.) ‘An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.’ (Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 360.) The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. (See Bennet v. United States Cycling Federation, supra, 193k Cal.App.3d at pp. 1490-1491.) If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter. (Civ. Code, § 1654; Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 360
“In the absence of extrinsic evidence, the scope of a release is determined by the express language of the release. (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 69 [].) The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. (Id. at pp. 68-69.) When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 757.) If a release of all liability is given, the release applies to any negligence of the defendant. ‘“It is only necessary that the act of negligence, which results in injury to the releaser, be reasonably related to the object or purpose for which the release is given.”’ (Ibid.) The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. (Madison v. Superior Court (1988) 203 Cal.app.3d 589, 602, fn. 11 []; Allan v. Snow Summit, Inc., supra, 51 Cal.App.4tha t pp. 1372-1375.)
“An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at pp. 756-757.) Thus, a release given in connection with parachuting activities releasing the release ‘forever, ’ unlimited by time and place, and containing no exceptions, was applicable to injuries incurred while parachuting three years after the release was signed and in a different location than where the activities covered by the release originally began. (Ibid.) In addition, a release given in connection with scuba diving activities was applicable to the death of a scuba diving student who was inadequately supervised and who drowned. (Madison v. Superior Court, supra, 203 Cal.App.3d at p. 601.)” (Benedek, supra, 104 Cal.App.4th at pp. 1356-1358, fns. Omitted; see also Sweat v. Bit Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-1305.).)
Benedek’s assertion that “[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy” (Benedek, supra, 104 Cal.App.4th at pp. 1356-1357) is a recognition of judicial interpretations of Civil Code section 1668, which states: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law whether willful or negligent, are against the policy of the law.” In Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, the court explained that not every written release of liability or “exculpatory provision” (id. at p. 94) is invalid under this statute, but rather only “the exculpatory clause which affects the public interest cannot stand.” (Id. at p. 98.) More recently, in City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, the court held that “an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” (Id. at p. 751.) It applied that rule in the case before it to “hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.” (Ibid.) As for ordinary negligence, however, the court stated:
“[A] number of cases have upheld agreements insofar as they release liability for future ordinary negligence in the context of sports and recreation programs, on the basis that such agreements do not concern necessary services, and hence do not transcend the realm of purely private matters and implicate the ‘public interest’ under Tunkl, supra, 60 Cal.2d 92. Our lower courts have upheld releases of liability concerning ordinary negligence related to gymnasiums and fitness clubs, auto and motorcycle racing events, ski resorts and ski equipment, bicycle races, skydiving and flying in ‘ultra light’ aircraft, and various other recreational activities and programs such as horseback riding, white-water rafting, hypnotism, and scuba diving. Most, but not all, other jurisdictions have held similarly. In light of these decisions, some more recent appellate decisions have concluded categorically that private agreements made ‘in the recreational sports context’ releasing liability for future ordinary negligence ‘do not implicate the public interest and therefore are not void as against public policy.’ (Benedek, supra, 104 Cal.App.4th at pp. 1356-1357.)” (City of Santa Barbara, supra, 41 Cal.4th at pp. 759-760, fns. Omitted.)
Thus although the “Release” signed by appellant could not validly release the releasees for future gross negligence (City of Santa Barbara, supra), it sufficed to achieve its obvious and clearly stated intention to “waive all claims against... ArmWorld Promotions (AWP)..., Promoters, operators or Sponsors... for injuries that I may sustain” insofar as those injuries may, as here, be alleged to have been caused by the ordinary negligence of those releasees. We also note that “the inclusion of the term ‘negligence’ is simply not required to validate an exculpatory clause.” (Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th at p. 67; in accord, see also Benedek, supra, 104 Cal.App.4th at p. 1356-1357, fn. 2.)
Appellant argues that the language of the release is not sufficiently “clear, explicit and comprehensible” to be upheld as valid. For this proposition he cites Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309 and Herman Christensen & Sons, Inc. v. Paris Plastering Co. (1976) 61 Cal.App.3d 237. Nothing in those cases supports appellant’s contention. In Ferrell “the only language which could possibly be construed as exculpatory, releasing or indemnifying appears in a convoluted 147-word sentence.” (Ferrell, supra, 147 Cal.App.3d at p. 319 (see also fn. 1 at p. 312 of the Ferrell opinion, where the 147-word sentence is quoted). Herman Christensen & Sons, Inc. involved a dispute between a general contractor and a subcontractor over who was responsible for injuries suffered by a subcontractor’s employee after the employee fell from a scaffold. It had nothing to do with any waiver of liability for negligence. And in contrast to the document in issue in the Ferrell case, the “Release” in the case presently before us could fairly be complimented for its brevity and reasonable clarity. The word “losses” is misspelled as “loses” on the third line of the Release, and the document would have been clearer if the words “the Patterson Apricot Fiesta Armwrestling Championships” had been repeated in place of the word “said” on the second-to-last line, but no participant in the event could reasonably have been under any misapprehension that the waiver of claims against “Promoters, Operators or Sponsors of said” could have been a reference to anything other than the promoters, operators or sponsors of the Patterson Apricot Fiesta Armwrestling Championships.
Respondents’ motions for summary judgment also contended that any recovery by appellant for his injuries was barred by the doctrine of implied assumption of the risk. (See Knight v. Jewett (1992) 3 Cal.4th 296.) The court’s order granting the motions did not specify whether the court found one or both of respondents asserted defenses to have been established, but in view of our conclusion, explained above, that respondents established a valid waiver of any claim by appellant for negligence against respondents, we need not and do not address the parties arguments concerning the doctrine of implied assumption of the risk.
DISPOSITION
The judgment is affirmed. Costs to Respondents.
WE CONCUR: Levy, J., Gomes, J.