Actually, you are not released from liability

A recreation provider such as a fitness center has a well-drafted liability release and requires all of its customers to sign the release before participating. Since the California courts have ruled that a liability release is a binding and enforceable contract, your client has a strong defense in the event of an injury, right? In most cases, yes - but what if the participant doesn't speak English and later claims she didn't understand what she was signing?

The California courts have historically upheld liability releases to bar negligence claims by an injured sports participant, even where he or she later claims not to have read the release before signing it. For example, in Randas v. YMCA of Metropolitan Los Angeles, 17 Cal. App. 4th 158 (1993), the court upheld a release signed by a plaintiff who spoke only Greek, finding that the liability release language was clear and unambiguous. The Randas court cited Witkin for the general rule in California that "Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him" (quoting 1 Witkin, Summary of Cal. Law (9th ed. 1987)).

The rule that a plaintiff cannot avoid the terms of a signed agreement on the ground that he did not understand the contract language has been followed for decades in California and other jurisdictions. For example, Madden v. Kaiser Found. Hospitals, 17 Cal. 3d 699, 710 (1976) states the "general rule that one who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument."

A California Court of Appeal decision, Jimenez v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546 (2015), however, held that a liability release written in English and signed by a non-English speaking customer will not necessarily bar her claims. The 3rd District Court of Appeal found that a liability release may be invalid if the customer claims not to have understood what he or she signed, and if the provider was aware of the communication problem but did not properly address it. This underscores the importance of having - and following - a well thought-out policy that addresses interactions with non-English speakers.

Etelvina Jimenez suffered serious injuries when she fell backwards off a treadmill and fractured her skull on a steel exercise machine located less than four feet behind the treadmill. She had no memory of the accident. The owner's manual for the treadmill specified that "for user safety," nothing should be located within six feet behind the treadmill.

Jimenez had signed a liability release upon joining the gym; however, she did not read or speak English. The membership manager knew this, but did not enlist a Spanish-speaking employee to help translate, as he usually did. Instead, he made "pumping motions" with his arms to indicate exercising, pointed to the dollar figure for the monthly membership fee and then had Jimenez sign the membership agreement and liability release.

Jimenez later claimed that she only understood that she was signing an agreement to pay a monthly fee to use the exercise facility, and did not know she had signed a liability release. 24 Hour Fitness contended that it had no legal duty to translate or explain the agreement to Jimenez. Her lawyers contended that 24 Hour Fitness was grossly negligent regarding the lack of clearance behind the treadmill, and that the liability release was invalid because it had been fraudulently obtained. The trial court granted summary judgment for 24 Hour Fitness based on the liability release and Jimenez appealed.

The 3rd District reversed and directed the case to go to trial, finding that there were disputed factual issues as to how the accident occurred, and whether 24 Hour Fitness' conduct could be found to be grossly negligent. The court also held that, given the membership manager's knowledge of Jimenez's inability to read or speak English and his attempt to communicate through gestures indicating exercise, there were disputed factual issues as to whether the release was obtained by misrepresentation or fraud. The court held that these disputed factual issues must be resolved by a jury at trial.

The court distinguished Randas on the basis that the plaintiff in Jimenez raised a triable issue as to whether the release she signed was procured by misrepresentation, overreaching or fraud, while the plaintiff in Randas did not make any such showing.

The Jimenez case highlights the risks that arise when obtaining liability releases from non-English speaking patrons. 24 Hour Fitness argued based on long-established case law that it had no legal duty to translate or explain the release to Jimenez, but the case indicates that - at least where a provider was aware that the participant could not read the release - there may be a factual dispute as to whether the provider "explained" the document's meaning in a misleading or fraudulent fashion, and therefore may not be able to obtain summary judgment based on the release.

Attorneys who represent clients that obtain liability releases from their customers should consider recommending that those businesses develop a policy for obtaining releases from non-English speakers. Had 24 Hour Fitness' manager enlisted a Spanish-speaking employee to help translate the agreement and answer any questions, or had he indicated to Jimenez that she should find an English-speaking friend or relative to help her understand the document, the fitness center might have been able to obtain summary judgment on her negligence claims. And although there is no legal duty to have documents translated into languages other than English, businesses with a large percentage of - for example - Spanish-speaking customers may want to consider having their liability release translated into Spanish for the use of those customers. In addition to giving providers a strong defense against negligence claims, liability release agreements can also assist the provider in educating the customer as to the inherent and other risks he or she may encounter during the activity, before he or she chooses to participate and potentially encounter those risks.