Letter to the Editor Bicycling MagazinePosted: June 21, 2011
My letters rarely get published…
400 S. Tenth St.
Emmaus, PA 18098
Via Email: email@example.com
Re: Signing Your Life Away?, page 35
Volume LII Number 4, May 2011
Dear Mr. Flax:
I thought I should clarify some of the statements in your article Signing Your Life Away?
(May 2011 issue of Bicycling Magazine). Three states do not allow anyone to use a release; Louisiana,1 Montana2 and Virginia.3 4 Several states limit how and when a release can be used; Arizona5, New Mexico6 and West Virginia7, Hawaii8, New York9. There are three states where the use of a release is very restricted or unknown; Connecticut, Wisconsin and Vermont. At present, no states that restrict the use of a release do so for cycling events except, perhaps, New York.
Your article did have one inaccuracy. Ten states allow a parent to sign away a minor’s right to sue;10 Alaska11, Arizona12, Colorado13, Florida14, California, Massachusetts15, North1 Dakota16, Ohio17 and possibly Wisconsin18. At present, more than twenty states have not ruled on whether a parent can sign away a minor’s right to sue. In those states that have ruled that a parent cannot sign away a minor’s right to sue there still maybe the option to compel the minor and the parent to binding arbitration of the claims. This may reduce the overall recovery of the claimant. In these courts and the rest of the states releases are worth their weight in gold. A release is an agreement that states in advance you will be responsible for your injuries. If you are worried about signing a release to enter an event or race, instead of rolling the dice to see if the release may be thrown out of court, purchase adequate health, life or disability insurance. This is probably a good idea for any cyclists riding on the streets.
Your readership needs to know that a release will more than likely stop their lawsuit for any injuries, so they can be prepared for that in advance rather than hoping they can win, not knowing their chances are slim. The one thing that a cyclist may want to investigate, (read) in a release is whether or not they are protected from a lawsuit by another injured rider. Either the term co-participant or other participants (riders, cyclists, etc.) should be in the release as a person protected by the release or the rider may be sued for the injuries of another participant. Negligence of a race or event organizer is difficult to prove and most riders are unsuccessful. Proving negligence of another ride has been proven quite easily. A rider’s condo, apartment or homeowner’s insurance is the company that will step up to defend if a cyclist is sued.
James H. Moss, JD
a member of The Spokesmen Cycling Podcast
WI App 1
C.C. Art. 2004 (2005)
2 MCA § 27-1-701
3 Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)
4 States that do not Support the Use of a Release
5 Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53
6 Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48
P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25
7 Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;
1994 W. Va. LEXIS 161
8 King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)
9 General Obligation Law § 5-326
10 States that allow a parent to sign away a minor’s right to sue
11 Alaska: Sec. 09.65.292
12 ARS § 12-553
13 C.R.S. §§13-22-107
14 Florida Statute § 744.301 (3)
15 Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
16 McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
17 Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)
18 Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003
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