Robert J. Allan & Associates, Robert J. Allan and Narine Sulahian, for Plaintiffs and Appellants.
Friedenthal, Cox & Herskovitz, Daniel R. Friedenthal and Mark H. Herskovitz for Defendants and Respondents.
Concur: JOHNSON, Acting P.J., WOODS, J.
This appeal involves a release signed by a participant in a "fire walk" acknowledging the possibility she "could receive burns or other injuries requiring medical attention" by participating in the event, and releasing defendants from "any damages whatsoever." We hold the release is valid and enforceable even though the term "negligence" is not found among its provisions. We also conclude plaintiff failed to present competent evidence the release was induced by fraud.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1997, appellant Anita Banker-Riskin, a psychotherapist, participated in a seminar on neurolinguistic programming offered by respondent The Holman Group, a business entity owned and operated by respondents Ron Holman (Holman), Linda Holman and Marcus Sola. At the conclusion of the seminar, participants and their guests were invited to attend a "Firewalking Seminar," which included a segment in which participants walked barefoot across a pit of burning coals. Banker-Riskin participated in the fire walk, which was held in the parking lot at The Holman Group's facility, in what used to be a flowerbed. Her feet were severely burned, and she suffered permanent injuries that required long-term hospitalization and three skin grafts.
Prior to participating in the fire walk, Banker-Riskin executed a written waiver. Because its terms are material to our disposition of this appeal, we quote the waiver in full:
"PLEASE READ CAREFULLY. BY SIGNING THIS FORM, YOU ARE WAIVING ALL RIGHTS TO COMPENSATION IN CASE OF INJURY.
"I understandthat my participation in the FIREWALKING SEMINAR is completely voluntary and at my own risk. I also understand that no assurance guaranteeing my safety is being made and I agree to hold Ron Holman, Marcus Sola, The Holman Group and/or its entities, and/or sponsors, facilitators, organizers, and property owners completely harmless of all liability if I sustain any injuries. By signing this waiver, I agree to assume full responsibility for any injury or injuries, both physical and mental that I may sustain by participating in the FIREWALKING SEMINAR. I acknowledge that I have had the risks involved explained to me and I understand them and that there is a possibility I could receive burns or other injuries requiring medical attention and I release all others from any damages whatsoever."
Banker-Riskin's husband, appellant Michael Riskin, executed an identical waiver in order to be nearby and to provide emotional support for his wife during her fire walk, although he did not participate in the fire walk himself. Respondent Judith Cassis, who has been certified as a trainer by the Firewalking Institute of Research and Education ("F.I.R.E."), facilitated the pre-walk seminar and the fire walk.
Banker-Riskin initiated this action alleging causes of action against The Holman Group, Holman, Linda Holman, Sola, Cassis and the City of Los Angeles for fraud, negligence, and negligent misrepresentation.1 Riskin joined his wife as a plaintiff, alleging claims for loss of consortium and negligent infliction of emotional distress.
Defendants moved for summary judgment based on the following evidence: Banker-Riskin received instructions in advance of the fire walk from Holman and Cassis, both of whom are certified F.I.R.E. trainers. Cassis reviewed each sentence of the release with each of the attendees in advance of the fire walk. Banker-Riskin read, understood and executed the release, which she believed was self-explanatory, and voluntarily chose to take the fire walk. Banker-Riskin, who had helped to build the fire under the coals earlier in the evening, never expressed any reservations about participating in the walk, even though she knew the coals were very hot and that she might be burned. Banker-Riskin did not pay attention to any of the people who fire walked before her and, when it was her turn, walked across the hot coals at a straight and even gait, but not fast.
Riskin, who did not fire walk himself, reviewed and signed a release identical to the one signed by his wife.
Neither Linda Holman nor Sola were present at the fire walk, and neither has ever met, spoken or corresponded with Banker-Riskin. Linda Holman did not attend or participate in the neurolinguistic programming seminar. Both Holman and Cassis had participated in and/or conducted numerous fire walks before August 1997. At no time prior to August 1997 had either Dr. Holman or Cassis seen any fire walk participant suffer any injury greater than minor blisters on the feet.
Plaintiffs' opposition to the summary judgment motion was supported, in large measure, by declarations from Banker-Riskin and Dr. Bernard Liekind, a physicist, and by deposition testimony from Nancy Guerrera and George Robinson, individual participants from fire walks conducted by The Holman Group in May and August 1997, respectively.
In her declaration, Banker-Riskin testified that, prior to her participation in the fire walk, both Holman and Cassis represented to her that the event was safe and the only injuries ever suffered by previous participants had been occasional minor blisters. Banker-Riskin said she had been instructed to walk steadily and not to run, but had never been instructed as to the speed at which to proceed across the coals. Banker-Riskin also declared that, when she signed the waiver, she believed in and relied on the expertise of Holman and Cassis to minimize the inherent risks of fire walking, and on their representations that the fire walk posed no risk of injury greater than a minor blister. Banker-Riskin also said her decision to participate in the fire walk was not entirely voluntary and that she felt a significant amount of pressure to execute the release because she had received clients through referrals by The Holman Group, and was dependent upon such referrals. Banker-Riskin said it was implicitly recognized that therapists who had participated in The Holman Group's seminars and fire walks received preference when it came to referrals of prospective clients.
Banker-Riskin was the fourth person to walk at the August 1997 fire walk. She said that, as instructed by Holman and Cassis, she focused on her own mental preparation for the fire walk and, thus, did not notice the three people who walked before her received significant injuries.
Banker-Riskin also offered deposition testimony by Cassis who testified that she had participated in approximately 25 fire walks, and had organized at least 15. Cassis testified that, for fire walks conducted on an asphalt surface, as was the one here, her usual practice is to prepare the surface by sweeping and hosing the asphalt on which the fire is to be built and, later, to flatten the hot coals with a shovel. Holman took care of the preparation for the August 1997 fire walk, and Cassis did not know if he performed these steps. Cassis said the August 1997 fire walk was the "most expertly" prepared fire walk site she had ever seen.
Cassis testified that seven people participated in the fire walk in August 1997, and that six of those participants were injured. Cassis also said she tried to shut down the fire walk after Banker-Riskin's walk because she felt something was "not right." However, after Cassis' attempt to close down the event, three people walked across the fire; two were burned. Prior to the August 1997 fire walk, Cassis, who had observed as many as 400 fire walkers, said she had never seen anyone receive an injury greater than a small blister on his or her feet. Cassis never offered first aid materials at this or other fire walks because there had never been any reason to do so. Cassis said the exact temperature of coals is unimportant. No thermometer was placed in the coals of the fire walk in August 1997.
Banker-Riskin also offered excerpts from the deposition of Nancy Guerrera, an employee at The Holman Group. Guerrera and her friend, Bridget Kittell, participated in a fire walk conducted by The Holman Group at its facility in May 1997, after they too signed releases. Guerrera said she had never fire walked before, and did not recall whether any of the walk's facilitators explained the dangers of fire walking before she signed the release. She also did not recall either reading or discussing the waiver before she signed it. Guerrera testified that, before she participated in the fire walk, she understood there was a chance she could be burned, but did not think it would happen to her. Guerrera testified she did not understand the extent of the possible harm she faced. Guerrera could not recall having received any instruction regarding how to walk across the fire.
Kittell was the first person to walk at the May 1997 fire walk. Guerrera testified that she watched Kittell walk, but did not notice anything amiss, and did not know Kittell had been burned. Guerrera was the sixth or seventh person to walk. She received quarter-sized blisters on both her feet, which required about two weeks to heal. Although the blisters were painful, she could walk on them and did not treat them with anything other than ice, aloe vera and an over-the-counter burn cream. She did not miss any work or see any medical professionals for her injury. Guerrera was surprised by the extent of her injuries, but understood it was a risk she had faced. Guerrera also testified Kittell was crying after her fire walk, and that Dr. Holman prayed over her feet. Guerrera said she and Kittell were in a lot of pain after the event and stopped for ice on the way home. Guerrera said Kittell told her she went to a burn center two days after the fire walk because she was so badly burned, and that it took her weeks to recover. Neither side offered direct evidence of Kittell's injuries. Guerrera did not testify as to how many fire walkers participated in the May 1997 event.
Banker-Riskin also offered deposition testimony from George Robinson, another participant in the August 1997 fire walk. Robinson, an engineer, attended the event because it was offered as a gift to his wife, a therapist and registered nurse. Robinson said he skimmed and signed the waiver before the fire walk, but did not recall its details. Robinson did not recall Cassis going through the waiver line-by-line with participants. Robinson said Cassis told people to continue walking across the coals once they started, but not to start across unless they felt ready to go. Before the walk, Robinson testified that prospective participants were told people had been burned fire walking, but that the injuries had been mainly minor blisters. No mention was made that anyone had been or could be seriously hurt, and there was very little discussion about what the waiver meant. Still, Robinson testified he knew he might be burned, and understood that the choice to participate in the fire walk was personal. He also testified he understood that, by signing the release, he was waiving his right to sue if he was burned.
Robinson walked after Banker-Riskin. He had watched the first few people, including Banker-Riskin, walk across the fire, and did not notice that anyone seemed hurt. No one tried to stop Robinson from walking, or to warn him away from the fire. Robinson received very serious burns on his feet, and was taken to the emergency room by paramedics for treatment and tissue repair.
Plaintiffs also offered a declaration from a physicist, Dr. Bernard Liekind. Liekind's declaration states that he has organized and participated in numerous fire walks, and details his writing and research on the application of scientific methods to fire walking. Liekind declared he is "nationally known for [his] experimental experience in the application of physical theories to the realm of fire walking." In Liekind's view, fire walking is an "abnormally dangerous" or "ultra hazardous" activity from which the inherent risks cannot be eliminated. However, the risks may be substantially minimized by proper preparation of the fire walk site and instruction to prospective participants, both of which Liekind believed were missing from the August 1997 fire walking event facilitated by Holman and Cassis.
Finally, plaintiffs offered a document referred to as "Exhibit 8." According to their attorney, Exhibit 8 is a copy of the registration form for a fire walk held by The Holman Group in May 1997. That document contains a handwritten notation stating "13 walked 1 2d & 3rd 2 2d." Plaintiffs argued Exhibit 8 constituted evidence that 13 people participated in the May 1997 event, and at least one person suffered second and third degree burns, while another suffered second degree burns. They argued defendants knew about these injuries, but refused to disclose them to prospective participants at the fire walk in August 1997.
In reply, defendants asserted extensive evidentiary objections to, among other things, the declarations of Banker-Riskin, her attorney and Liekind, and to the evidence on which these declarations were based or which they attempted to introduce, including Exhibit 8.
After numerous continuances for additional discovery and other reasons, the motion was heard and granted in May 2000. This appeal followed.
Banker-Riskin contends the trial court erred in concluding the release she signed barred this lawsuit against defendants.2 We disagree.
1. Standard of review.
"'A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.' [Citation.] The pleadings define the issues to be considered on a motion for summary judgment. [Citation.] As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. [Citation.]" (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) We review orders granting summary judgment motions de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72.) In other words, we exercise "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court . . . ." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
2. There is no triable factual issue as to the scope of the release.
Banker-Riskin first contends the release she signed is unenforceable because it does not clearly and unambiguously express intent to exonerate defendants from liability for their own negligence.
The standard governing the enforceability of a release such as the one at issue here is well-established. "'To be effective, a release need not achieve perfection . . . .'" (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755, quoting National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal. App. 3d 934, 938.) "'As long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant's negligence, it will be sufficient. [Citations.]'" (Paralift, Inc., supra, 23 Cal.App.4th at p. 755.) A written release is enforceable, and will thereby exculpate a tortfeasor from liability for his negligence or misconduct, if it is clear, unambiguous and explicit in expressing the parties' intentions. (Ibid.)
Banker-Riskin argues that the release is ineffective to bar this action because the exculpatory provision does not explicitly use the term "negligence." This argument was expressly rejected several years ago in Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62. There, the court reviewed a line of cases that had found release provisions ineffective where they did not expressly waive the defendants' "negligence." However, the Sanchez court found the holding in those cases did not turn on the mere absence of the term negligence. Rather, "the fundamental predicate for their holding is that the exculpatory provisions were not clear, unambiguous, or comprehensible or were formatted so as to obscure their inclusion in the agreements." (Id. at pp. 66-67.)
We agree with the rule expressed in Sanchez. The presence or absence of a specific reference to "negligence" is not dispositive. Instead, the court must glean the intention of the parties as it appears in the release form to determine whether the injuries were reasonably within the contemplation of the parties at the time of contracting. (Id. at p. 67.) In Sanchez, notwithstanding the absence of a specific reference to the defendant's "negligence" with regard to the operation of its health club facility, the court held plaintiff's injury (a fall suffered during an exercise class due to defendant's allegedly negligent instruction) was precisely the sort of "injury . . . arising out of or connected with [her] use of the fitness center" for which she had expressly agreed to hold defendant harmless. (Id. at pp. 68-69.)
A similar rationale applies here. The release agreement Banker-Riskin signed is broad as to the type of risks she agreed to assume. She testified she understood the clear terms of the release when she signed it, understood defendants offered no assurances as to her safety, and knew she could be burned by the fire. This understanding is reflected in the terms of the release, which evidences the parties' intent that fire walkers assumed all risk of injury by participating. Specifically, Banker-Riskin expressly understood and agreed that her participation was "completely voluntary and at [her] own risk." She also understood that no assurance guaranteeing her safety had been made and "agreed to hold [defendants] . . . completely harmless of all liability if [she] sustained any injuries." "By signing [the] waiver," Banker-Riskin also expressly "assumed full responsibility for any injury or injuries . . . [she might] sustain by participating" in the fire walk, acknowledged that "the risks involved [had been] explained" and that she understood those risks, and that there was "a possibility [she] could receive burns or other injuries requiring medical attention," and agreed to "release all others from any damages whatsoever." (Emphasis added.)
The essence of Banker-Riskin's argument is that "if a tortfeasor is to be released from [liability for negligence] the language used 'must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.'" (Paralift, supra, 23 Cal.App.4th at p. 755, citation omitted.) However, to be valid, "a release need not achieve perfection . . . it suffices that a release be clear, unambiguous, and explicit . . . ." (National & Internat. Brotherhood of Street Racers, Inc., supra, 215 Cal. App. 3d at p. 938.) Here, the specific activity and the concomitant risk of serious burns are sufficiently described in the release. Indeed, Banker-Riskin conceded she knew the fire would be very hot and might burn her, even though, based on defendants' representations, she believed she would sustain no injuries beyond a few blisters.
"The law imposes no requirement that [the participant] have had a specific knowledge of the particular risk which resulted in [the injury sued upon]. [Citation.] Not every possible specific act of negligence by the defendant must be spelled out in the agreement or discussed by the parties. . . . 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." (Paralift, Inc., supra, 23 Cal.App.4th at p. 757, citations omitted.) In our view, this release expresses just such an agreement. We agree with the trial court that, when Banker-Riskin agreed to participate in the fire walk she understood the "inherent risk . . . [of] fire to flesh," and understood she was "going to get burned" by "walking barefooted across a burning pit of fire," and that this risk was "precisely what the release [was] intended to cover."3 We conclude that the release and its assumption of risk provisions are clear, explicit and comprehensible, and were clearly intended to release all claims, including those based on the negligence of defendants. (See Hohe v. San Diego Unified School Dist. (1990) 224 Cal. App. 3d 1559, 1567-1568 ["The presence or absence of the words 'negligence' or 'bodily injury' is not dispositive. We look instead to the intention of the parties as it appears in the release forms before the court."].)
3. Banker-Riskin failed to establish the existence of a triable issue of fact as to whether the release was induced by fraud.
Banker-Riskin contends the release is unenforceable because its execution was induced by fraud. This argument is based on Banker-Riskin's contention that defendants knew several people had suffered serious burns during a fire walk in May 1997, but failed to disclose that fact to the participants in the fire walk in August. We are not persuaded.
There is no evidence any defendant knew any one had suffered serious injury at any fire walk prior to the fire walk at which Banker-Riskin was injured. The only evidence offered by plaintiffs in that regard is the hearsay deposition testimony of defendants' employee Guerrera about injuries suffered by her friend Kittell, and the unexplained handwritten notation on the purported registration form from the May 1997 fire walk. Neither is sufficient.
Even if the hearsay offered by Guerrera about Kittell's injuries is considered, it still does not establish defendants knew Kittell suffered any injury beyond the anticipated blister. Specifically, Guerrera testified that Kittell participated in the May 1997 fire walk and sustained serious burns to her feet, for which she sought medical treatment several days after the fire walk. However, no direct evidence of Kittell's injuries was offered. Moreover, no evidence indicates either Guerrera or Kittell ever communicated the seriousness of their injuries to any defendant. As a result, there is no evidence defendants ever knew either that Kittell was injured or that her injuries were so severe they required treatment at a burn center. On the contrary, the only evidence defendants had even an inkling Kittell may have been injured was Guerrera's deposition testimony that Holman "prayed" over Kittell's feet after the fire walk. This weak and ambiguous piece of evidence is wholly insufficient to satisfy plaintiffs' burden to demonstrate defendants' actual knowledge or their intentional concealment of any prior injury. While plaintiffs did not offer evidence that post-walk prayers were unusual, defendants offered evidence that it was not uncommon for participants to cry after a fire walk due to exhilaration over having overcome their fears. Guerrera also testified Sola stopped by her desk several days after the fire walk and inquired how she and Kittell were doing. Guerrera did not complain to Sola about her injuries, but said she and Kittell were "still in pain." Guerrera was not able to recall talking with Holman about her or Kittell's injuries. Plaintiffs' evidence is ambiguous and insufficient to satisfy their burden of demonstrating defendants' actual knowledge or intentional concealment of prior injuries.
Banker-Riskin also argues a handwritten notation on Exhibit 8, the May 1997 registration form stating "13 walked 1 2nd & 3rd 2 2nd" constitutes evidence defendants knew several participants in the fire walk held in May suffered serious burns. It does not. This document was offered only as an exhibit to plaintiffs' attorney's declaration. No foundation was established, and the document was not authenticated. Banker-Riskin failed to identify the author of the notation, the date on which the notation was made, or its meaning. Defendants objected to the introduction of the exhibit on the further grounds that it assumed facts not in evidence, called for speculation, constituted inadmissible hearsay, and was vague, ambiguous and unintelligible. We agree with the trial court that Banker-Riskin's "explanation" that this notation is evidence of defendants' knowledge that several participants suffered severe injuries during the fire walk in May is pure speculation. The fact defendants produced this document during discovery is irrelevant without some meaningful explanation as to its meaning or author. The trial court sustained defendants' evidentiary objections to this document. Banker-Riskin does not take issue with that ruling on appeal.4
In sum, there is no evidence Banker-Riskin's agreement to execute the release was induced by fraud because defendants intentionally concealed the risks associated with fire walking. The release disclosed the very activity and risk of burns Banker-Riskin alleges caused her injury. It bars her recovery here.
4. Banker-Riskin's remaining contentions lack merit.
There is no merit in Banker-Riskin's remaining arguments that the doctrine of implied primary assumption of the risk does not bar the claims here, or that fire walking is an "ultrahazardous" activity for which defendants should be held strictly liable.
The doctrine of implied primary assumption of the risk does not apply to a case, such as this, involving an express or written release. That doctrine involves an analysis of whether the law will imply a duty on the part of a defendant to protect a plaintiff from a particular risk of harm based on nature of the activity in which the defendant is engaged, and the relationship of defendant and plaintiff to that activity. (Knight v. Jewett (1992) 3 Cal.4th 296.) However, "there is no need to analyze an activity and the relationship of the parties to that activity" where, as here, "the parties have expressly agreed in advance that assumption of the risk applies to an activity and their relationship to that activity." (Allabach v. Santa Clara County Fair Assn (1996) 46 Cal.App.4th 1007, 1012, emphasis added.) Here, as in Allabach, the dispositive issue before the court is whether the release applies to the accident and injuries sued on. (Id. at p. 1013.)
We also cannot sanction Banker-Riskin's attempt to argue fire walking should be considered an ultrahazardous activity for which defendants may be held strictly liable. Banker-Riskin neglected to plead this theory in the complaint. Proceedings on summary judgment are limited to the matters contained in the pleadings. Shortly before the hearing on the summary judgment motion, Banker-Riskin sought leave to amend the complaint to assert this theory. However, despite its initial inclination to grant leave to plead a strict liability claim, the trial court ultimately dismissed the action without permitting the amendment. Banker-Riskin failed to protest that ruling below. She may not do so for the first time on appeal. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [Issues not raised in trial court will ordinarily not be considered on appeal].)
The judgment is affirmed.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. [Back]
1. The City is no longer a party to this action. [Back]
2. Because Riskin's claims are derivative, we follow the parties' lead and discuss only Banker-Riskin's claims. [Back]
3. We also reject Banker-Riskin's argument that the release does not exonerate Cassis or Linda Holman from liability because they are not specifically named therein. The provisions of the release clearly extend to the fire walk's "facilitator" -- indisputably Cassis -- as well as the "property owners" of the facility on which it is held, which includes Linda Holman. [Back]
4. Evidence of Robinson's burns also does not support plaintiffs' theory of defendants' prior knowledge of injuries. Robinson walked after Banker-Riskin. Thus, defendants' knowledge of his injury could not have been disclosed to stop Banker-Riskin from taking her fire walk. [Back]