california waivers state-university
Overly Broad Sports Facility Liability Waiver
<p>The University of California, Berkeley introduced a new liability waiver this Fall Semester.  If students refuse to sign the waiver, they'll be barred from using the campus gym and other sports facilities starting this September.  Here's the waiver in question:</p>

<blockquote>
  <p>In consideration of permission to use, today and on all future dates, the property, facilities, staff, equipment, services, and programs of the Recreational Sports Department, I, for myself, my heirs, personal representatives or assigns, do hereby release, waive, discharge, and covenant not to sue The Regents of the University of California, its directors, officers, employees, and agents from liability from any and all claims including the negligence of the Recreational Sports Department Facilities and Programs resulting in personal injury, accidents or illnesses (including death), and property loss arising from, but not limited to, participation in activities, classes, observation, and use of facilities, premises, or equipment.</p>
</blockquote>

<p>The part that concerns me is "I... do hereby release... The Regents of the University of California... from <strong>any and all claims</strong> <em>including</em> [claims related to use of the RSF]."</p>

<p>By my reading, this is very broad, releasing the University from all legal claims.</p>

<p>I have two questions:</p>

<ol>
<li>Is my reading correct?  We've had a discussion on my department mailing list about whether "including" here acts as a qualifier that limits the scope of "all claims" to just those involving use of the RSF.  Or, does "including" only strengthen "all claims," such as to explicitly include those arising from negligence?</li>
<li>Is signing this waiver likely to impact students' legal claims against the university concerning matters unrelated to use of the RSF?  Do California or Federal Law, respectively, provide any protections that would make parts of this waiver unenforceable?  Suppose a graduate student has a spat with the university over intellectual property, or suppose a student is injured due to university negligence around a construction site.  Could this impact their right to sue, etc.?</li>
</ol>

<p>I think that the language</p>

<blockquote>
  <p>In consideration of permission to use, ... Recreational Sports Department </p>
</blockquote>

<p>...</p>

<blockquote>
  <p><strong>arising from</strong>, but not limited to, participation in activities, classes, observation, and use of facilities, premises, or equipment.</p>
</blockquote>

<p>would be read as limiting the waiver to cases in some way connected with the RSF. Even so limited it is rather broad, and may not be enforceable. In particular public facilities are not always allowed to obtain a waiver of otherwise valid negligence claims.</p>

<p>If it were interpreted to mean "all claims on any matter, even ones having nothing at all to do with the RSF" then I think it would be so broad as to be unenforceable as unconscionable, and as misleading, so that there was no meeting of minds. </p>

<p>You are correct in your text-based reading of the clause. This is clear if you take the text up to the word "claims"</p>

<blockquote>
  <p>hereby release... The Regents of the University of California, its
  directors, officers, employees, and agents from liability from any and
  all claims</p>
</blockquote>

<p>which lets them off the hook for everything that is legally waivable.</p>

<p>What follow is <em>not</em> a restriction on what claims could be: </p>

<blockquote>
  <p>including the negligence of the Recreational Sports Department
  Facilities and Programs resulting in personal injury, accidents or
  illnesses (including death), and property loss arising from, but not
  limited to, participation in activities, classes, observation, and use
  of facilities, premises, or equipment.</p>
</blockquote>

<p>The "including" clause follows automatically from saying "any and all claims". There is no linguistic or legal justification saying that "including" means "limited to". "Incliding" is followed by an example, not a restriction. The clause does not say that this waiver is limited in any way – "any and all" means "unlimited". A non-cynical interpretation is that they made a mistake in drafting; a cynical interpretation is that they hope that people won't notice that this is a blanket waiver of the right to legal claims – something that you bargained away in exchange for the right to use the gym.</p>

<p>It's not clear that the result is so broad as to be unconscionable; no doubt it is something that do you want to agree to if you underestand what it says. So I am skeptical that there is hope for an unenforceability claim.</p>
