Health clubs, horseback riding facilities, sports teams, and other sports and recreation facilities are constantly being sued for personal injuries despite the fact that the plaintiff has signed a release of liability waiver. As a result, such businesses and their insurers are forced to expend large amounts of money defending what are in essence frivolous claims. One option is to do what USA Cycling did - include an attorney's fees provision in the release of liability waiver. Such a provision, and the resulting award of over $30,000 in attorney's fees, was upheld by the California Court of Appeal.
Kendall v. USA Cycling, et al. involved a street bicycle race that took place in Utah. The plaintiff suffered significant injuries, including severe brain damage, as a result of an accident that occurred when she was struck by a male rider. In fact, her injuries were so severe that she had to re-learn how to read, tell time, etc. The plaintiff claimed that the defendants were negligent in starting the races in such a manner that the female racers were overtaken by the male racers. She further argued that the court should apply Utah law, as that is where the accident occurred. The defendants denied any negligence and asserted that even if there was negligence, the plaintiff’s action was barred because of two separate releases the plaintiff signed in order to compete in the race.
On the choice of law issue, the court applied California law finding that the laws in Utah and California were substantially similar. The court then granted the defendants’ motion for summary judgment based upon the releases the plaintiff signed and entered judgment in favor of the defendants.
Following the motion for summary judgment, the defendants brought a motion to recover all attorney's fees and costs incurred in defending the action based upon the attorney's fees provision of the release. The provision read as follows:
“I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert any claim in contravention of this agreement, the asserting party shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending unless the other party or parties are finally adjudged liable on such claim for willful and wanton negligence...”
Based upon the foregoing, the court granted the defendants’ motion and awarded defendants in excess of $30,000 in fees and costs. The court of appeal affirmed, finding that the parties were free to contract on the issue of attorney's fees, and found that the fees and costs awarded were reasonable and supported by the evidence.
