Answers to Winter 2010
California Bar Exam Questions

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Winter 2010 Performance Test

Question: PT-A: Ochoa v. CMH

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Answer

PT A W 2010
To Kristina Castro
Re: Ochoa v. CMH
Early Neutral Evaluation regarding
Enforceability of Waiver

Statement of Facts
Mr. Ochoa signed the CMH waiver, dated 1/10/09. The witness signature is that of his English-Spanish bilingual secretary. The 2009 trip was the third in as many years that Mr. Ochoa took heli-skiing with CMH. He had signed CMH’s waiver before every trip. He was an excellent skier. In addition to heli-skiing, Mr. Ochoa also engaged in hunting and fly fishing, activities that required him to sign a waiver of liability.

The CMH waiver Mr. Ochoa signed was one page in length and was titled: “Release and Waiver of Liability and Indemnity Agreement.” The document listed some of the risks the waiver covered. Specifically enumerated was the risk of “avalanche.” On March 12, 2009, Mr. Ochoa died in Torre Mountain, Columbia due to asphyxiation resulting from an avalanche. The coroner classified it as an accidental death.

None of the Mexican ski group that Mr. Ochoa was part of suggested that CMH put any time pressure on them or applied salesmanship in order to obtain their signatures. Mr. Ochoa actually signed his waiver at his place of business before the trip.

Mr. Ochoa was a highly resourceful, successful entrepreneur in the steel industry. He did business with U.S. companies and traveled extensively in the U.S. and Europe. He also vacationed frequently in the U.S. His wife stated that she could not recall any business deal that Mr. Ochoa did not pursue because of his English language limitation. She stated he did whatever he had to get a deal done. She said by one means or another he understood others and made himself understood in order to participate fully.

Legal and Factual Issues Presented
Three issues are presented by the parties:
1. Whether public policy invalidates waivers of liability for ultra-dangerous sports and recreational activities.
2. Whether the language of the waiver was unambiguous and whether the risk of avalanche was within the scope of the waiver.
3.Whether a waiver is enforceable against a releasor who is not proficient in the language of the waiver.

1. Whether public policy invalidates waivers of liability for ultra-dangerous sports and recreational activities.
Contentions of parties. Mr. Ochoa’s widow contends that public policy invalidates waivers that involve ultra-dangerous sports, such as heli-skiing. CMH contends that public policy does not invalidate waivers for sports and recreational activities, and the danger of the sport does not change the result.

Mrs. Ochoa’s argument rests on a public policy exception to liability waivers. Where there is a public policy interest, a liability waiver is not enforceable. Examples of a public interest are when a patient must have hospital care and is required by the hospital to waive his rights against the hospital for negligence.

However, the law is settled that there is no public policy interest in recreational or sports activities. The court in Randas stated, “This court has not been apprised of any case … that voided a release on public interest grounds in the sports and recreation field.”

CMH’s position is entirely in accord with  the settled law of Randas.  But Mrs. Ochoa argues that the rule is different when the recreational activity is ultra-dangerous. In that case, she argues, there is a public policy against allowing waiver.

Mrs. Ochoa has not pointed to any authority for her argument. In fact, Randas and later cases confirm that there is never a public policy exception to enforcement of waivers for sports and recreational activities, even when the activity is ultra-dangerous. In fact, the Randas court said specifically,  “We reject plaintiffs attempt to distinguish the sports and recreational cases on the ground that they involved “death defying activities.” The court said that the public policy exception “fails to include dangerousness as a relevant characteristic,” and releases have been upheld  for such hazardous activities, including skydiving, motorcycle races and mountain climbing.

Here, Mrs. Ochoa has not argued that heli-skiing is a sport or recreational activity and thus falls squarely within the Randas holding. Her argument that heli-skiing is dangerous and should be subject to a different rule was considered by the court and rejected.

Following Randas, the court in Allan stated, “The general principle remains unaltered that there is no public policy which opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party. No public policy which opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party. Only exculpatory clauses affecting the public interest are invalid and exculpatory agreements in the recreational sports context do not implicate the public interest. “

Here, Mr. Ochoa, by signing the CMH waiver three years running, did precisely what the Allan court described: he shouldered a risk which the law would otherwise have placed on the other party and did so for the consideration of participating in the guided heli-skiing adventure. 

Conclusion: Public policy does not prevent enforceability of waiver for sports and recreational activities even where the activity is dangerous.  There is no merit to plaintiff’s contention.

2.Whether the language of the waiver is clear and whether the harm that occurred was within the scope of the waiver.
Contentions of the parties. Mrs. Ochoa contends that the waiver is unenforceable because it was ambiguous and did not serve notice that it covered the risk of avalanche. CMH contends the waiver was clear and specifically covered avalanches.

In Randas, the court noted, whether a contract provision is clear and unambiguous is a question of law. The court there considered waiver by the YMCA. It is instructive to compare the YMCA waiver alongside CMH’s. The YMCA

one-page document captioned in bold lettering: “Release and Waiver of Liability and Indemnity Agreement.” The CMH waiver is also one page. It features its title both in all caps and bold and with a box around it: “RELEASE OF LIABILITY, WAIVER OF CLAIMS AND ASSUMPTION OF RISKS.”

The YMCA waiver stated, “The undersigned hereby releases from all liability for any loss or damage on account of injury caused by the YMCA.”  It further stated, “The undersigned hereby assumes full responsibility for and risk of bodily injury due to the negligence of the YMCA.” The CMH waiver stated “PLEASE READ CAREFULLY, BY SIGNING THIS DOCUMENT, YOU WILL WAIVE YOUR LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE.”

The CMH waiver goes further to give notice by including in the one-page document two other bolded, all caps, boxed text. The first says, “I AM AWARE OF THE RISKS ASSOCIATED WITH HELICOPTER SKIING AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS, AND HAZARDS. I AGREE NOT TO SUE FOR ANY INJURY RESULTING FROM RISKS OF HELICOPTER SKIING.”

The second boxed text states: “I WAIVE ANY AND ALL CLAIMS I MAY HAVE AGAINST, RELEASE FROM ALL LIABILITY, AND AGREE NOT TO SUE CMH, DUE TO ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE ON THE PART OF CMH OR ITS STAFF.”

Since the YMCA waiver Randas considered was clear and unambiguous, and the CMH waiver far exceeds the YMCA’s, there is little doubt that a court would find the CMH waiver clear and unambiguous.

Mrs. Ochoa further contends that the waiver Mr. Ochoa signed did not cover the risk of avalanche. Mrs. Ochoa does not dispute the cause in the coroner’s report. Mr. Ochoa died as the result of an avalanche. The CMH waiver specifically enumerated “avalanche” as among the risks Mr. Ochoa was waiving.

Even if the CMH waiver had not specified avalanches, this risk is a natural one for skiing, and would thus be covered by a general release involving skiing. The court in Pritikin stated that the release need not achieve perfection. It need not cover every possible specific act of negligence of the defendant. It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.

Here, the purpose of the vacation was skiing. The intent of the parties was to release the ski guide company from liability arising out of skiing. Certainly, the danger of avalanche is within the scope of dangers associated with skiing. Mr. Ochoa died due to an avalanche. The injury that occurred was reasonably covered by the waiver, even if the waiver had not specifically enumerated avalanches.

The Allan case is in accord. It also considered a waiver and observed, “The Agreement and Release of Liability states plainly on its face that skiing is a dangerous activity, and that in consideration of receiving ski lessons, the student must agree to hold Snow Summit and its employees harmless and not to sue for an injury caused by participation in the hazardous activity, even if Snow Summit or its employees were negligent. … The release provisions were prominent, including large, bold type. Allan had to look at the release at least long enough to fill his name in the indicated blank and to sign at the end. Notification was plain and clear.

Conclusion: The CMH waiver was clear and unambiguous and specifically covered avalanches within its scope. Plaintiff’s contention that the waiver fails to give clear notice of the risk of avalanches is without merit.

3.Whether a waiver is enforceable against a releasor who is not proficient in the language of the waiver.
Contentions of parties. Mrs. Ochoa claims the waiver cannot be enforced against Mr. Ochoa because he did not read English well and did not understand what he was waiving. CMH claims that Mr. Ochoa understood what he was waiving because he had signed participated in CMH heli-skiing trips for three years and had signed CMH waivers three years in a row. CMH further claims if Mr. Ochoa did not understand what he was waiving, he had ample opportunity to ask for help.

Of the three issues, this one presents the greatest factual dispute as to Mr. Ochoa’s comprehension of the CMH waiver. However, regardless of his comprehension, the law is clear that one is charged with knowledge of a document he signs, regardless of his proficiency in the language.

In Randas, the court stated, “It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it. This principle has been extended even to cases where the person who signs the contract is illiterate—in such cases the individual has a responsibility to have the contract read to him.

Here, Mrs. Ochoa reported that Mr. Ochoa was a sophisticated and successful businessman who did business all over the world, including substantial business in the U.S. He also frequently took vacation trips, including engaging in other risky sports that required signing waivers, in the U.S. She said that he understood spoken English well, but did not read English well. She said he never let language be a barrier in his business dealings. He did what he had to do to get the deal done. She further stated that even when the couple dined out, Mr. Ochoa never seemed to find his language limitations a barrier.

CMH presented evidence gathered by its investigator, Ripka, reported that members of the Mexican ski group said Mr. Ochoa was without inhibition in asking for and getting what he wanted. In fact, the witness to Mr. Ochoa’s release was his bilingual secretary who spoke understood English fluently. Mr Ochoa signed the waiver at his place of business, along with payment for the trip. There can be no question of CMH pressuring Mr. Ochoa into signing, since he received it by mail and could take the time he needed to consider the document.

CMH also pointed out that plaintiff had signed substantially similar waivers for helicopter skiing with the same defendant company three years in a row. He had been helicopter skiing three years in a row and well knew the risks.  If plaintiff had wanted to have the waiver read to him or explained to him, he could have asked; bilingual staff and clients were available.

Based on this evidence, a court would probably conclude that Mr. Ochoa knew in substance the significance of the waiver he was signing and certainly knew the specific risks of heli-skiing. A court would also probably conclude that Mr. Ochoa had the opportunity to receive a translation or explanation of the waiver if he needed one before signing it.

Despite any factual dispute over Mr. Ochoa’s comprehension, the law remains clear that one who signs a document is held to its terms, regardless of his ability to read it.

The Randas court stated: “Absent bad faith or misrepresentation, ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to asset 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. One who signs an instrument when for some reason, such as illiteracy or blindness, he cannot read it, will be bound by its terms in case the other party acts in good faith without trick or misrepresentation. The signer should have had the instrument read to him.”

Conclusion:  Regardless of Mr. Ochoa’s comprehension of the waiver, he is bound by its terms.

Summary of conclusions:
The waiver is valid since it does not violate public policy.
The waiver’s scope covered the harm and was clearly stated.
Mr. Ochoa is bound by signing the waiver, even if he could not read or understand it.

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