Release for training ride at Triathlon training camp stops lawsuit

Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481

Assumption of the risk is still a valid defense to stop suits in NY, more so when supported with a release that explains the risks…

In this case the plaintiff was on a training ride with other cyclists at a triathlon camp. During the ride the plaintiff followed the rider in the paceline in front of her off the roadway and then attempted to get back on when she crashed. She was then run over by a car.

The plaintiff sued the club to which she belonged and which was sponsoring the training, the driver of the car and the leader of the training weekend.
The plaintiff had extensive experience in cycling and in triathlons. She voluntarily signed up for the weekend and the training. She voluntarily was on the highway and followed the other cyclists off the roadway.

So?

Assumption of the risk

The court first found the plaintiff assumed the risks of the risks that created her initial injuries and the accident. Under New York law “doctrine of assumption of risk is “intended to facilitate free and vigorous participation in athletic activities.” Without the ability to freely and vigorously any and all athletic events will be boring. The ability to play to the fullest extent possible can only be achieved if you know you are not liable beyond the ordinary rules of the game.

When someone enters into a sport, they must be prepared to accept the risks of the sport, absent unforeseeable or intentional injuries.
…it is not necessary . . . that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as he or she is aware of the potential for injury from the mechanism from which the injury results.”
If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.

When you engage in sporting activities, you consent to the risks of the game.

Inherent Risks

All activities have risks. The risk of eating is choking on the food. That risk is an inherent risk. The court looked at cycling and found that the risk of striking a hole and falling is an inherent risk of bicycling on most outdoor surfaces.

…the risk of encountering ruts and bumps while riding a bicycle over a rough roadway . . . is so obvious . . . or should be to an experienced bicyclist . . . that, as a matter of law, plaintiff assumed any risk inherent in the activity.

If a plaintiff is injured due to the inherent risks of an activity the defendant owes no duty to the plaintiff.

The release or waiver of liability

The first thing the court stated about the release was the release made the plaintiff aware of the risks of injury.

….she was aware of the risks explicitly stated in the waiver. Once “risks of the activity are fully comprehended or perfectly obvious” to plaintiff, plaintiff is deemed to have accepted the risks by taking part in the activity

When releases are well written, clear and unambiguous and signed knowingly and voluntarily by the plaintiff they will be upheld in New York. One exception is a statute in NY that prohibits releases for places of amusement or recreation; GOL § 5-326.

§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

The issue then becomes is the activity that injured the plaintiff one of amusement or recreation. Both require the payment of a fee for use of the activity or place. Here the activity, which included the payment of a fee, was educational in nature, like most sporting activities. “New York State Courts have uniformly found that when a sporting activity is “instructional” rather than “recreational” a waiver of liability will not be deemed void under GOL § 5-326.”

The plaintiff argued that the weekend was a place of recreation. However that argument was not upheld because of the instruction the plaintiff received in becoming a better triathlete.

So Now What?

Assumption of the risk is another way of saying that the plaintiff was educated. The more information your clients know and understand the more they assume the risk. Make sure you work had at two things to prove assumption of the risk:

1. 1. Answer all questions and provide more information, all information, which your clients could want to know.
2. 2. Be prepared to prove that you have answered all questions and provided all the information your clients needed to know.

The easiest way is to put everything up on a website and then constantly refer your clients to the website after dealing with them. Then, place a statement in your release that they have viewed your website.

In New York you need to make sure that your activity, if you wish to use a release is instructional in nature. You can do this at the same time that you are informing or educating your clients about the risks.
However, if you are a recreational or amusement that charges a fee, you have a greater burden to educate your clients of the risks. That maybe the only defense you have.

Remember, no matter what you do in whatever state, educated knowledgeable guests or clients have more fun, are less likely to be injured and create a solid defense for you.

What do you think? Leave a comment.

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