People are frequently offered opportunities to participate in the latest trend, whether crossfit gyms, hot yoga studios, water powered jet packs, sensory deprivation tanks, and even speed dating. Along with the offer, however, is the usual requirement that they assume the risk of the activity and release the company from liability. The release is a contractual attempt to negate a party’s tort liability.
This article will define and describe the general release used in many of the recreational activities described above and explain and explore ways to avoid the release and assist you, in properly evaluating such agreements and the personal injury claims which implicate a release of liability.
THE SCENE: Suppose a Buyer and Seller agree on a purchase price for Seller’s home (for this hypothetical assume $850,000.00), they sign the customary California of Association of Realtors (“CAR”) form Residential Purchase Agreement and Joint Escrow Instructions (“Agreement”) and open escrow. Buyer deposits $25,000.00 into escrow. Buyer’s lender approves Buyer for a purchase money loan. The typical written disclosures are made by Seller. This is Buyer’s first home purchase, or at least he is not sophisticated in real estate purchases.
After loan approval and after the disclosures, Buyer removes all contingencies. Seller incurs thousands of dollars in obtaining termite clearance and in removing Seller’s junk from her yard, in contemplation of the sale. Thereafter, however, Buyer’s lender does an about face and disapproves the loan. Buyer also discovers several conditions regarding the house that Buyer believes were misrepresented (e.g., an open insurance claim, fire damage, mold, water damage and unpermitted work).
In today’s world of business, there is an astonishing trend when it comes to long term relationships between employers and employees. According to the Bureau of Labor Statistics, “of jobs that workers began when they were 18 to 24 years of age, 69 percent of those jobs ended in less than a year and 93 percent ended in fewer than 5 years. Among jobs started by 40 to 48 year olds, 32 percent ended in less than a year and 69 percent ended in fewer than 5 years.” The reality of the situation is sometime in the near future, one of your employees will be leaving your company in favor of another company. As an employer, there are critical steps you must take in order to protect your interests.
Can a company prevent one of its current clients from hiring away the company's employees?
Possibly. Generally, the company, as an employer, cannot restrict the movement of its employees. However, some California Courts seem to suggest that a narrowly defined contract provision between a company and its client may give the company the ability to prohibit “employee raiding,” or at least make it expensive for a client to steal an employee, which might be a hiring disincentive.
Under common law, contractual restraints on the practice of a profession, business, or trade were once considered valid as long as they were reasonably imposed. In 1872, however, California adopted a public policy that promoted open competition, thus rejecting the common law rule of reasonableness. This public policy is manifested in California Business and Professions Code Section 16600, which states:
Duncan v. McCaffrey Group, Inc. (Cal.App. 5 Dist., 2011) 2011 WL 5110475, 7
What happens when you sign a contract and then, in a dispute over the contract language, the other side tries to introduce oral evidence that contradicts the written word? In Duncan, the court of appeal did not allow the introduction of such evidence because of the inclusion of a “merger” or “entire agreement” clause.