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Court of Appeal:
‘American Idol’ Contestant Waived Any Potential Liability
Presiding Justice Bigelow Says Sweeping Release Was Not ‘Unconscionable’
By a MetNews Staff Writer
A singer who was a contestant on the television show “American Idol,” and claims he suffered a severe injury when an audiologist’s assistant attempted to make an impression of his ear canal in preparation for the fitting of an earpiece, was properly barred from pursuing his action based on language in an agreement he signed waiving liability for whatever might happen in connection with the show, the Court of Appeal for this district has held.
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Michael Simeon Smith is seen as a contestant on “American Idol” on Fox television singing, while dancing with singer/actress/dancer Jennifer Lopez, one of the judges. The Court of Appeal for this district held on Tuesday that there is no liability on the part of Fox or other defendants to Smith relating to an ear injury he suffered in connection with molding being placed in his ear in preparation for the fitting of an in-ear monitor, then quickly removed when he said he was in pain. The justices determined that a broad waiver of potential liability he signed is enforceable.
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Div. Eight on Tuesday affirmed a summary judgment which Los Angeles Superior Court Judge William D. Stewart granted in favor of the defendants, Fox Broadcasting Company and others. Presiding Justice Tricia A. Bigelow wrote the opinion, which was not certified for publication.
Although the contract, which contestants were required to sign, and which contained waivers in “Section D,” was one of adhesion, she said, the level of unconscionability of the provisions was not such as to render those waivers unenforceable.
The plaintiff, Michael Simeon Smith, alleged negligence on the part of the assistant, Ana Maria Montoyo, and each of the other defendants, as well as causes of action relating to products liability. Smith said in his complaint, filed Dec. 12, 2016:
“As part of being a contestant on the American Idol television show, Plaintiff was to be fitted with an ear piece prior to performing. On December 12, 2014, in the early morning, MONTOYA and/or DOES 1 to 5, inclusive, providing services as the agent and/or employee of DOES 6 to 10, inclusive, was to fit Plaintiff with such ear piece. MONTOYA and/or DOES 1 to 5, inclusive, placed the silicone and/or molding material into Plaintiff’s right ear. Plaintiff immediately felt pain and told MONTOYA and/or DOES 1 to 5, inclusive, to remove the Product. MONTOYA and/or DOES 1 to 5, inclusive, forcefully pulled it from Plaintiffs right ear, and in the process of pulling out the Product, a portion of Plaintiffs eardrum was removed. Blood began to come out of Plaintiffs ear. Plaintiff was moved to a separate room, and left there for several hours.”
He then specified that he “sat in the room, suffering in pain for approximately five (5) hours,” adding that he subsequently sought medical treatment for his injuries, including right tympanoplastym” a surgical technique involving a graft.
“Plaintiff has been unable to perform music at the same level as prior to the incident, due to the absence of much of his eardrum,” Smith averred.
Contractual Provisions
“Section D” included such language as this:
“I and the other Releasing Parties acknowledge and agree that by reason of this Agreement, and the release contained in the preceding paragraphs, I and the other Releasing Parties are assuming any risk of such unknown facts and such unknown and unsuspected claims. I and the other Releasing Parties have been advised of the existence of Section 1542 of the California Civil Code which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
“Notwithstanding such provisions, this release shall constitute a full release in accordance with its terms.”
Bigelow’s Opinion
In her opinion affirming the summary judgment, Bigelow said:
“Smith contends Section D is procedurally unconscionable because he lacked the ability to negotiate its terms, and the challenged release and waiver provisions were hidden in the middle of a dense contract that was more than 20 pages long. Smith contends Section D is also substantively unconscionable because it required him to waive statutory rights and remedies available to him. We conclude Smith has failed to demonstrate Section D contains anything more than a low degree of procedural unconscionability and a complete lack of substantive unconscionability. As a result, there does not exist a dispute of material fact as to the enforceability of the Contestant Agreement.”
She went on to declare:
“[T]the Contestant Agreement, while adhesive in nature, did not involve surprise or other sharp practices. Smith presents no evidence of such. Instead, Smith acknowledges he was given weeks to review the agreement and could have sought legal advice if he wished. Section D was written in plain language and each provision within section D was initialed by Smith separately. The heading of each provision, presented in bold-faced type and underlined, disclosed its subject in plain language: ‘Assumption of Risk of Unknown or Undiscovered Facts, Claims or Defects;’ ‘Waiver of All Claims and Suits;’ and ‘No Representations or Warranties from Producer.’… Further, Smith presents no evidence respondents lied to him, placed him under duress, or otherwise manipulated him into signing the Contestant Agreement.”
Gross Negligence
Smith argued on appeal that Montoyo was guilty of gross negligence, that the California Supreme Court held in 2007 in City of Santa Barbara v. Superior Court that waivers of liability for future conduct do not contemplate gross negligence, and that he should have been permitted to amend his complaint to allege negligence at that level. Bigelow said:
“Any amendment to the complaint would have no bearing on our decision. Summary judgment was properly granted because Smith failed to meet his burden to demonstrate that a triable issue exists regarding gross negligence, not because he failed to allege it in his complaint.”
She explained that Smith “presented no evidence that Montoya deviated from safety directions or industry standards in making the impression of his ear or in taking it out,” instead citing “his own testimony that Montoya ‘yanked’ the silicone out of his ear and the fact of his injury to support his claim of gross negligence.” That, Bigelow said, was not enough.
The case is Smith v. American Idol Productions, B301534.
Attorneys on appeal were Gregory J. Owen, Susan A. Owen, Tamiko B. Herron and Beau M. Goodrick of Owen, Patterson & Owen for Smith and Robert P. Wargo and Sharon S. Jeffrey of Manning & Kass, Ellrod, Ramirez, Trester for the defendants.
Smith was among the top 12 contestants in the show’s 14th season before being eliminated.
“American Idol” is now aired on ABC. Its run on Fox was from 2002-2016.
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