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Release stops most of the litigation against a ski area and USA Cycling in a Mountain Bike race but leaves other members out in the cold or should I say stuck in the courtroom

Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132

Several mistakes in the process would have doomed this case for the defendants in other states.

The plaintiff became a member of USA Cycling and NORBA (National Off Road Bicycle Association). While becoming a member, he signed an Acknowledgement of Risk and Release of Liability Form. Later, that summer he traveled to Sugarloaft Mountain Ski Area and entered a mountain-bike race. To enter the race, he signed an Official Entry Form which included language under the heading Athlete’s Entry & Release Form.

During a practice run the plaintiff collided with another racer Bourassa sustaining injuries. He sued USA Cycling, Sugarloaf and the other racer Bourassa. The plaintiff claimed all three were negligent. The defendants Sugarloaf and USA Cycling responded with the defenses of release. This decision came from the parties’ motions for Summary Judgment on the issue of whether the release signed by the plaintiff prevented him from suing Sugarloaf and USA Cycling…..but not the other racer Bourassa.

Summary of the case

The first issue that the court reviewed was whether U.S.A. Cycling was covered under its release. When Lloyd joined the organization, he joined the United States Cycling Federation (USCF). Soon thereafter the USCF merged into a new corporation U.S.A. Cycling. The old release used the name United States Cycling Federation (USCF) as the party to be protected. The plaintiff argued that U.S.A. Cycling was not protected because it was not named in the release.

However, the court found the language of the Sugarloaf release covered U.S.A. Cycling because it referred to sponsors of the event, and NORBA was a sponsor of the race. NORBA was a subsidiary of U.S.A. Cycling so U.S.A. Cycling was protected as part of Sugarloaf’s release.

The court then looked at the plaintiff’s argument that training run was not covered under the release. Again, only an interpretation of the release by the court saved the defendants again. The court found that since the training run was a mandatory part of the event, it was covered under the event.

The plaintiff then made the old argument that the release did not cover the event because releases are disfavored. The court simply stated that although Maine disfavors releases, that disfavor means releases will be strictly interpreted rather than prohibited. The court then found that the plaintiff was not compelled to sign the release, he signed all releases, but mainly the Sugarloaf release of his own free will.

Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result of that choice.

The court then reviewed whether the releases covered the legal issues of the case. The court reviewed the release and pointed out the release covered the incident that covered the plaintiff’s injuries.

The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.

The court then reviewed the plaintiff’s argument that the release did not cover willful and wanton negligence and the acts of the defendant were willful and wanton. The plaintiff found this language in the release. However, Maine does not recognize willful and wanton negligence and found the plaintiff’s argument did not apply.

Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence.

Finally, the court found the sections of the release that allowed the defendants to recover damages for defending the lawsuits was applicable and ordered the defendants to provide proof of costs, including attorney fees against the defendant.

So Now What?

If you don’t cover other racers in your release, you need to provide a table for every racer entering your race. After a racer signs up for the event, he can then go down the tables signing each individual racers release form so if there is a collision or an injury allegedly caused by another racer they can have the benefit of the legal defense of release.

Alternatively, you can add a few more words to your release!
 

Corporations change, merge, move and die, and releases may need to last forever. When you identify the parties to be protected, include language that protects any future entity that may be liable or may take over for the original corporation.

The original release signed to become a member of the organization did not do that. The Sugarloaf release had language that was broad enough to cover the organization. U.S.A. Cycling got lucky!

You can be sued for a lot of things that occur besides the specific accidents during the event. Riders can be injured riding to or from the event start or finish, walking across your parking lot, eating at your restaurant or just falling out of bed in your hotel. Use a release that covers everything and anything so you don’t have to rely on the court to find a way to protect you. Make your protection up front, visible and easily understood.

Courts always state that the language in the release covers the accident that the plaintiff is complaining of, if that language is in the release. You can’t write a release that covers every type of accident or injury. However, you can write a release that covers the ones with high frequency and those with high severity. Here high frequency, collisions between participants in the event resulted in high severity. Because collisions between racers were covered in the event, it was easier for the court to find the release covered the injuries and accident the plaintiff complained was negligent.

Never give the plaintiff a reason to sue you. Never give the plaintiff the legal argument to win the lawsuit against you. If you are using a release with a clause that says the release is not valid for something, willful and wanton negligence, gross negligence, etc., have it taken out. Why give the plaintiff notice of the way to beat you in a lawsuit? If Maine did recognize willful and wanton negligence then the defendants would still be litigating this matter.

The defendants in this case did everything they could to allow the plaintiff to sue them and win. The court and the attorneys representing the defendants provided a miracle and got the defendants out of this case, except the other racer.

1. Make sure your release covers you, all of you, the future you and any other “you’s” associated with you.
2. Make sure your release covers everyone who makes the event possible. It is hard to get sponsors if they may be sued.
3. Make sure the release covers everyone working for you, including employees and contractors.
4. Please cover the other people in the event. How many racers are going to keep showing up when they hear “I got third and a lawsuit at that race!”
5. Have your release written so if you do get sued, you can recover your damages for defending your lawsuit.

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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