Newsletter

On March 14, 2008, the California First District Court of Appeal issued it’s published opinion in our case of Cohen v. Five Brooks Stable.  Our client, Susan Cohen, sustained personal injuries when she fell from a horse during a guided trail ride provided her by Five Brooks Stable and was drug by her horse for over a quarter of a mile.  Two questions were presented by our appeal:  Whether by signing a “Visitor’s Acknowledgement of Risk” (the Release) Ms. Cohen expressly waived her negligence claim against the stable; and, if not, whether Five Brooks Stable was exonerated by the doctrine of Primary Assumption of Risk. Granting summary judgment on the ground that the Release constituted an express waiver, the Trial Court found it unnecessary to inquire into the applicability of the doctrine of Primary Assumption of Risk.

The First District Court of Appeal, in reversing the Trial Court, concluded that the Release did not clearly and unambiguously inform an ordinary person, such as Ms. Cohen, untrained in the law that its purpose and effect was to exempt Five Brooks Stable from liability for its own negligence.  The Court of Appeal also concluded that summary judgment was not supported by the doctrine of Primary Assumption of Risk.

The significance of the Court’s opinion goes beyond the fats of the case.  There are numerous activities that the public engages in which require a person to sign a Release waiving liability for any injuries that are sustained while participating in the activity. The list of activities includes river rafting, hang gliding, parachuting and even Little League Baseball. The Cohen opinion, while not precluding the use of Releases, makes it clear that a Release will not exonerate a business from liability where the negligence of the business’ employees are the cause of one’s injuries.