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If you make a promise to attract participants, you must come through on your promises.

Case goes back to trial court on marathoner’s marathoner’s claim that there was not promised electrolyte replacement at water stations.

Saffro v. Elite Racing, Inc., 98 Cal. App. 4th 173; 119 Cal. Rptr. 2d 497; 2002 Cal. App. LEXIS 4076; 2002 Cal. Daily Op. Service 3941; 2002 Daily Journal DAR 5009

In this case, a marathon ran out of the promised electrolyte replacement drink by the time the runners at the rear came through the aid stations. The plaintiff suffered a grand mal seizure on a flight home and blamed the seizure on the lack of water and electrolyte drinks. Because the advertising for the race promised the replacement drinks and the race organizer admitted in a letter post race that they did not have the drinks the appellate court held the plaintiff had a case and sent the decision back to the trial court for trial.

The plaintiff entered the “Suzuki Rock ‘N’ Roll Marathon in San Diego. Elite Racing, Inc. organized and ran the event. While on a flight home to Chicago, he suffered a Grand mal seizure, which left him with some memory loss and in a hospital for several days.

Elite sent written materials to the participants stated that there would be 23 water and refreshment stations on the course. All stations would include water, and 11 stations would distribute “Race Day” an electrolyte fluid.

When the plaintiff arrived at the first two stations, there was no water and no electrolyte fluid. At the third station, there was a volunteer with a jug of water and cups. At no station while the plaintiff was running was there any electrolyte fluid.

After the race, Elite sent a letter to participants stating there were problems, and they took full responsibility for the problems.

The trial court granted the defendant’s motion for summary judgment because the plaintiff assumed the risk of his injuries. The appellate court reversed because failure on the part of the organizer to provide a promised condition of the race could not be assumed by the plaintiff. You cannot assume what you do not know or understand.

The court stated that the scope of the legal duty owed is dependent upon the type of activity and the relationship between the parties. A sponsoring organization must “the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.” A race organizer has a duty to conduct a reasonably safe event to the extent possible without altering the nature of the event.

This duty includes the obligation to minimize the risks of dehydration and hyponatremia by providing adequate water and electrolyte fluids along the 26-mile course–particularly where the race organizer represents to the participants that these will be available at specific locations throughout the race.

Such steps are reasonable and do not alter the nature of the sport. Accordingly, we hold this is a case involving secondary assumption of risk

Because the steps could have been done, were promised in the marketing material and were not done the plaintiff could not assume the risk.

So?

Marketing Makes Promises that Risk Management Must Pay For

If you say you are going to do it to get participants to your activity, if what you promise is necessary to keep participants safe, or that they can allege put them at greater risk you better well do it.

There are some real issues here when the alleged medical condition, hyponatremia, is from drinking too much water and the allegations are based on not enough water. That is something that was confusing. The court did not care. As long as the court had an expert’s opinion, a physician, supporting the allegation the court is semi-powerless to argue anything differently.

Whether you do this before you market your event, or before you let possible participants know, make a list of the promises you are making. If one of the promises is iffy, then you had better made sure participants understand that. As the event or activity receives a closer look at your list of promises and check them off when they are covered. Any boxes without a check mark are a possible lawsuit when it comes to the safety of the participants.

Another way of looking at this is, would you run a whitewater rafting trip without Personal Floatation Devices (PFD’s) for the participants? Would you go sky diving without a parachute? If the promised benefit or issue is necessary for safety you release may not protect you from suit.

Normally, I would encourage a possible defendant to deal with injured participants. Sending a letter post race explaining issues is in that realm. Admitting you screwed up may sometimes be a good thing. However, saying it is always better than writing it. You can gauge a person’s reaction and deal with their issues in person. A letter lacks personality and does not care. Unless you knew that a possible plaintiff was out there, I would still probably encourage it. The court read the letter as proof of the court’s analysis, not as proof of the facts. Therefore, the letter was harmful, but not critical.

The obvious issue that is not answered is why not use a release. The case does not mention one. Probably, a release under California law would have prevented this lawsuit, but not in all states. A release can be defeated because of fraud or misrepresentation.

No matter what, make sure the promises you make, in writing, on your website, in your emails, on the phone or in person can be fulfilled. A broke promise coupled with an injury is a lawsuit if an injury occurs.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

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