PA court upholds release in bicycle race.

Scott v. Altoona Bicycle Club, d/b/a the Tour de-Toona, 2010 Pa. Commw. Unpub. LEXIS 513

One release was signed online.

In this case, an injured cyclist from a road race sued the race, an individual; USA Cycling, Inc, (USAC); the Commonwealth of Pennsylvania, the PA Department of Transportation, (DOT); and Huston Township, a Pennsylvania municipality. Why? Because she crashed during a bicycle race and was rendered a paraplegic. The more defendants the greater the possibility that one defendant will not have a defense.

To enter the race the plaintiff signed two different releases. One was an online application to obtain a license to race from the USAC. The second release was to enter the Tour de Toona signed at the time of the race.
The Tour de Toona was a seven (7) day bicycle race. During a 19.2 mile circuit while making a 90 degree turn at the end of a downhill the plaintiff rode off the road through grass into a 30 inch drop off.

The plaintiff sued for negligence, gross negligence and recklessness against the various defendants. The defendants raised the defenses of release, assumption of the risk and the governmental entities raised the defense of immunity. The defendants filed a motion for summary judgment based on the releases signed by the plaintiff, assumption of the risk, and the immunity defense. The trial court granted the motion, and the plaintiff appealed to the dismissal.

Arguments

The plaintiff argued on appeal that the releases were void as a matter of law because the two releases were exculpatory agreements. Also, under Pennsylvania law releases could not block claims of gross negligence and recklessness, and the defendants were liable because the defendants were in a better position to prevent her harm.

The court looked at release law in Pennsylvania. For a release, or more specifically the exculpatory clause in the release, to be valid:

(1) the clause must not contravene public policy, (2) the contract must be between persons relating entirely to their own private affairs and (3) each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

The plaintiff did not argue whether the releases were contracts of adhesion so the court did not discuss the third component.

In order for an exculpatory agreement to violate public policy under Pennsylvania law the matter of interest, or the subject matter of the contract, must be the public, the state, an employer-employee relationship, public service, public utility, common carriers (airlines or trains, etc.) or hospitals. The bicycle race was none of those. Although the race did provide a benefit to the community, it did not rise to the level necessary to be a violation of public policy.

The second part of the requirement is the agreement is between private parties. A government entity or the public as a whole was not a party to the release. This argument is similar to the first in that the examples that void the release are identical. However, one is a contract that affects those parties and the second is a contract with those parties.

The court then looked at the language of the releases to determine whether the language of the releases was clear so that one party would understand that they are reliving the other party of any liability.

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in case of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

The court can only look at the language in the release, within the four corners of the document. No outside information or evidence can be used to interpret the release or to explain it.

Consequently, the court found the releases valid.

The language in these releases clearly and unambiguously reflects Appellees’ intention to be released by Scott from all liability, even for Appellees’ negligence, for injuries she may suffer during a USAC event generally, and the Tour de ‘Toona, specifically.

The court quickly dismissed the argument that the plaintiff only skimmed the releases finding it did not matter.
The plaintiff then argued the releases were not valid for claims of gross negligence. The court dismissed this argument stating Pennsylvania does not recognize gross negligence.

Supporting the aforementioned argument as to gross negligence is the Pennsylvania Supreme Court’s declaration, that “there are no degrees of negligence in Pennsylvania” common law, only differing standards of care in certain circumstances.

Because the release mentioned negligence, under Pennsylvania law, that includes gross negligence, since there is no gross negligence in PA, the release covered everything. A circular argument, to some extent, but effective.

However, the court did raise the issue that if the release had been in indemnification agreement, gross negligence would have to have been identified in the release as something to be barred in the release.
The plaintiff then argued that the defense of assumption of the risk was not a valid defense. The court state:

…because she did not knowingly proceed in the face of an obvious danger or an inherent risk of competitive cycling, and because the trial court ignored evidence that Scott did not assume the risk that ABC would not correct a course that was inherently dangerous.

The plaintiff argued that assumption of the risk was no longer a defense in PA because it had been merged into comparative negligence. Comparative negligence has the jury determine the percentage of fault of all of the parties. The plaintiff’s recovery is then reduced by the percentage of fault that the jury finds the plaintiff to be for his or her injuries.

However, the court had apparently been carving out exceptions to the complete merger of assumption of the risk with comparative negligence. The court had already found exceptions to the rule for strict liability claims, or were changed by statute. The court stated:

Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff from harm if the plaintiff voluntarily faces a known and obvious risk and is therefore considered to have assumed liability for his own injuries.

The case did not involve strict liability or a statutory exception to the merged rule. However, the releases were an express assumption of risk forms and thus could prove the plaintiff assumed the risk of her injuries and bar her claims. Remember there are two types of assumption of the risk. Express, which is a written form, and implied, which is the knowledge or imputed knowledge of the plaintiff.

An express assumption of the risk is where the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for the plaintiff’s protection. Ordinarily, such an agreement takes the form of a contract, which provides that the defendant is under no obligation to protect the plaintiff, and shall not be liable to him for the consequences of conduct, which would otherwise be tortious.

Here one release had the specific assumption of the risk language in its release.
Another issue the plaintiff raised that the court mentioned was the race had been marketed as the “safest possible.”
 

 
Proof that the race was not the safest possible is the injury the plaintiff received. Consequently, any marketing or advertising that states any activity is safe will come back to haunt you. Here the court dismissed the statements. However, many courts have used such statements to hold the defendant liable as proof of misrepresentation and void the release.

So Now What?

Clearly, Pennsylvania law looks to see if the magic word negligence and probably gross negligence are in the language of the release.

Based upon the foregoing, we hold that claims for gross negligence and recklessness need not have been specifically mentioned in the subject re-leases in order for Appellees to have been protected in this case. Since, in strictly construing the subject releases as against Appellees, this Court finds that the intention of the parties is stated with particularity therein, Appellees have met their burden of establishing that they are released from Scott’s claims. Moreover, since the exculpatory clauses in the releases have met the necessary requirements, they are valid and enforceable.

Another issue the court reviewed was the fact the release was not being used by an organization that is marketing itself as eliminating known and typical risks of the activity. This exception can create a gray area in the law for the outdoor recreation and adventure travel industry.

If you are an activity, business or program that markets to the general public, who would believe that you have eliminated the typical or normal risks of the activity, your release must be written with extreme care and caution in Pennsylvania. You must inform the guest or participant that those risks have not been removed, and the guest or participant is assuming those risks.

The gray area arises in that only the public will know if you are an activity that in their mind has removed the typical or normal risks. Since you cannot remove all risks, you need to protect yourself contractually and legally.

This also applies to any language that can be used to prove express assumption of the risk. Under Pennsylvania law, a plaintiff can assume the risk of his or her injuries if they do so in writing. A well written release not only should include the specific language needed to bar the claim from a legal standpoint but also should prove the plaintiff assumed the risk of their injuries.
Pennsylvania may be the exception to the rule where your release should contain the words’ gross negligence. However, the wording should something that identifies the release bars claims of negligence and gross negligence rather than baring a claim of negligence and not gross negligence. Never tell the plaintiff in your release or other document how to sue you.

The plaintiff suffered a terrible injury in her accident. As I have repeatedly stated, whenever there is an accident resulting in a quadriplegic or paraplegic there is so much money on the line, there is going to be a lawsuit. No one has enough insurance in this day and age to deal with that financial burden and the attorneys are willing to risk the defenses because the payoff can be so large.

One argument that you see appearing that was appealed by the plaintiff but not reviewed by the court was the defendants were in a better position than the plaintiff to take the steps necessary to keep the plaintiff safe. This is an insidious defense that instead of relying upon the law relies upon the theory that since the plaintiff was injured; the defendant should have and could have done something to prevent the injury.

It is critical that your release and other documentation states that your client or participant, no matter what, is in charge of their life and their rescue. So often after a safety talk we have given the guest the idea that we will rescue them when it is not only impossible but to do so would put more people at risk. It is always the guest’s duty to keep them safe. A guide, outfitter or race official will help if possible, but the decision and the reaction of the guests is always the guests and solely that of the guest. Do not create a situation where you allow the guest to argue that you had the duty to keep them safe and failed.

What do you think? Leave a comment.

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