Summer 2019 Defense Comment 27 when he signed the “Release of Liability and Assumption of Risk Agreement,” he generally understood it to mean that if his child was hurt, the school wasn’t liable. Plaintiff’s father also signed a document titled “Parent Concussion/Head Injury Information Sheet.” The undisputed evidence also showed that every member of the coaching staff completed all required training for coaches prior to the game in question. The head injury training the coaches underwent did not instruct them to individually assess players for head injury when the players were not showing any signs of head injury. Rather, they were instructed to generally be on the lookout for signs of head injury throughout the game. The training taught coaches to watch players’ gait to determine if they were unsteady on their feet, as well as facial expressions (such as whether their head was down, whether they had their hands to their head, or had a blank look), and how they communicated and interacted with teammates and officials. They were also taught to assess responsiveness to speech, the player’s awareness of where they were and what was going on, their speed of play, and the way they executed plays, such as whether they were using the correct foot to step in. The head football coach for plaintiff’s team specifically recalled a number of instances throughout the game where he spoke to plaintiff directly and saw no signs of a head injury until plaintiff collapsed. High School Football Does Not Affect the Public Interest In recent decades, the assumption of the risk doctrine has been slowly eroded under California law. However, releases have routinely been upheld by California courts 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. (See Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351 [release enforced for a health club]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007 [release enforced for automobile racing]; Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253 [release enforced for ski resort]; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462 [release enforced for cycling race]; Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758 [release enforced for white water rafting].) California courts have stated that the reason recreational releases do not implicate the public interest is that participants in such activities have the option of not participating, and there is no practical necessity that they do so. (Madison v. Superior Court (1988) 203 Cal. App.3d 589, 599.) One recent case has even gone so far as to categorically conclude that releases in the recreational sports context are not void as against public policy. (Benedek, supra, 104 Cal.App.4th 1351, 1356-1357.) The California Supreme Court has endorsed that conclusion. (City of Santa Barbara v. Superior Court (Janeway) (2007) 41 Cal.4th 747, 759-760.) Here, the trial court held that express waivers of liability in the recreational sports context do not violate public policy in the absence of any violation of a statute, fraud, or intentional conduct aimed at injuring the plaintiff. TheReleasewasClearandExplicit Under California law, whether a release is clear and unambiguous is a question of law for the court to resolve, and not a question of fact. (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598.) Contract principles apply when interpreting a release, and the meaning of the language is also a legal question. (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) As one court has observed, “Drafters of releases always face the problem of steering between the Scylla of simplicity and the Charybdis of completeness.” “To be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to combine the elegance of a trust indenture with the brevity of a stop sign. ‘Whoever thinks a faultless piece to see, Thinks what ne’er was, nor is, nor e’er shall be.” [citation] It suffices that a release be clear, unambiguous, and explicit, and that it expresses an agreement not to hold the released party labile for Trials & Tribulations – continued from page 26 negligence.” (Nat’l & Internat. Bhd. of St. Racers v. Superior Court (1989) 215 Cal. App. 3d 934, 937.) Plaintiff argued that the release in question was not clear and explicit and was, therefore, unenforceable. Plaintiff argued that the release in question only offered “generalized,vague,andimpreciselanguage” that is disfavored by California courts. In support of this argument, plaintiff argued that the release did not “mention, describe, or allude to football, concussions, traumatic brain injury, or the known risks of CTE.” Plaintiff further argued that the release in question made no mention of the risks associated with the many alleged failures of the school district to monitor or assess high school football players or the coaching decisions that will leave the players in the game too long. The court held that the release was clear and explicit. The court relied on the fact that the release was titled, “Release of Liability and Assumption of Risk Agreement” and the title was “enlarged, bold font at the top center of the document…” The court further found that handwritten checkmarks indicating that the release was for football and basketball made it clear what activities were covered by the release. Further, the court found that the language in the release was clear in that it warns “school-related activities may involve numerous risks, dangers, and hazards, both known and unknown, where serious accidents can occur, and where participants can sustain physical injuries, damage to their property, or even die.” There Was No Admissible Evidence of Gross Negligence The California Supreme Court has held that recreational releases are not valid with respect to gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747.) A court may determine whether certain conduct is grossly negligent as a matter of law. (DeVito v. State of California (1988) 202 Cal.App.3d 264, 272.) In California, gross negligence has been defined to mean either a “want of even scant care” or “an extreme departure Continued on page 28