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Four releases signed and all of them thrown out because they lacked one simple sentence!

Releases have to be written correctly and they have to be written in conjunction with all of the possible defendants to a suit.
This is a sad case stemming from the death of young man who had traveled from Ohio

Photograph of girls performing synchronized tr...

Photograph of girls performing synchronized trampoline at WAGC in Quebec November 2007. Trampqueen 21:52, 15 November 2007 (UTC) (Photo credit: Wikipedia)

to Tennessee to participate in a gymnastic event, the John Macready Flip Fest Invitational in Knoxville. The deceased was an experienced participant on the trampoline. During the event, he fell off the trampoline hitting the concrete floor with his head.

His parents sued the organizer of the event, Top Flight Gymnastics, the sanctioning organizations, USA Gymnastics (USAG) and the United States Gymnastics Federation (USGF). These three defendants, Top Flight, USAG and USGF as well as the booster club for Top Flight had releases that were signed by the deceased and or his mother or father.
The deceased mother stated she signed the release for the event in Kentucky. (No explanation was given why she signed the release in Kentucky.) The USGF and USAG releases were part of membership applications and probably signed in Ohio. It was not stated where the Top Flight release was signed.
The deceased and the plaintiffs lived in Ohio. USAG and USGF were based in Indiana but sanctioned events all over the US. Top Flight was located in Tennessee where the accident occurred.
The defendants filed a motion for summary judgment arguing that the release should be reviewed under Ohio’s law. The reason for this is because Ohio upholds a release signed by a parent. (See States that allow a Parent to Sign away a Minor’s right to sue.) The court fist had to determine what law applied, Ohio or Tennessee. No one was arguing for Kentucky or Indiana. Neither of those states allows a parent to sign away a minor’s right to sue.
The plaintiffs sued for negligence “in that they sanctioned an event which failed to provide a safe environment, utilized untrained spotters, failed to ensure sufficient floor matting, failed to require experienced and trained spotters, and failed to require sufficient safety matting.”

Summary of the case

This case was brought in Federal District Court as a diversity case. That means that one or more of the parties is located outside of the state of where the lawsuit is filed and the amount being asked for is in excess of $75,000.  
The Federal Court had to decide which law would be applied to the case. This is called a “Choice of Laws” issue, meaning the court has to decide which state law will be used to decide the case. Step one in this decision, is to decide which states have a relationship with the lawsuit. How that decision is made is based on the law of the state where the court is. The case was filed in the United States District Court for the Eastern District of Tennessee, so Tennessee’s law was used to decide which state law would be used to the Choice of Law question which then would be used to decide which state law would be applied to the case.
In Tennessee, the test to decide which state law is to be applied is the “the most significant relationship” test.
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, to which event the local law of the other state will be applied.
The court ruled that because the accident occurred in Tennessee, Tennessee had the most significant relationship to the case. The court applied the four-part Tennessee test to make that decision. The court looked at the following questions to determine what state law would be applied:
(1) the place where the injury occurred,
(2) the place where the conduct causing the injury occurred,
(3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(4) the place where the relationship, if any, between the parties is centered.
Tennessee was where the injury occurred, the place where the conduct causing the injury occurred. Tennessee “was the only mutual and central contact these parties had with one another.”
The court then looked at Tennessee’s law concerning releases and held all four releases void. Tennessee does not recognize a parent’s right to sign away a minor’s right to sue. Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989). The decision, on what state law to apply, decided the real legal issue in one sentence.
Of the four states in question, Tennessee, Indiana, Kentucky and Ohio, only if the choice of a law’s question had found Ohio, the place where two releases had been signed, would the case end. Simply put, the case would have ended if the court could have applied Ohio’s law to the facts.
The court then took on an interesting turn. The court stated, on its own, that the release also failed because the allegations of the complaint pleaded intentional conduct recklessness or gross negligence. Under Tennessee law gross negligence and reckless conduct are not protected by a release. The court then said, “defendants’ failure to provide a safe environment, failure to utilize trained spotters, and failure to ensure sufficient safety matting, all constitute gross negligence and reckless conduct.”
Rarely do courts look at the facts and then develop claims or defenses for one side or the other. Here, the court did just that. The court created additional claims for the plaintiff. Nowhere else in the decision did the court allude to allegations on the part of the plaintiffs whom any of the defendants acted a grossly negligent way.

So Now What?

I’ve written about it several times before about jurisdiction and venue. See A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit, The legal relationship created between manufactures and US consumers and Shark Feeding Death triggers debate. Jurisdiction is the term applied to the law that is to be applied to the case. This case is a legal argument over jurisdiction. Venue is the legal term used to describe where, what city and state the court that hears the case will be.
Releases must first have the correct language to make the release effective in barring claims and lawsuits. It must have a well written negligence clause.
However, if your release does not have a jurisdiction and venue clause, just like this case, your release is worthless a lot of the time. If anyone can change the venue to another state, and/or change the jurisdiction to another state you have just wasted paper.
As I repeat over and over again.
1.      Your release must be written by an attorney who is familiar with your activities and the law concerning releases.
2.    Your release must have a well written negligence clause. It must, according to the state law of the jurisdiction you decide, meet the requirements to be upheld.
3.    Your release must have a jurisdiction and venue clause. Period!
If you wrote your release I now it fails the first and second parts of the test. I suspect even if an attorney wrote your release, it might fail the third part of the test.

What do you think? Leave a comment.

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4 Comments on “Four releases signed and all of them thrown out because they lacked one simple sentence!”

  1. Good analogy. Risk Management is eliminating risk. However there is a limit on everything. If there were no mats or spotters, then this was a FUBAR and risk management failed.

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  2. Kayla says:

    As a gymnastics coach myself, working at a gym with many possible liability issues, there shouldn’t have been an inch of concrete surrounding the trampoline area. In a case like this where there MUST be a trampoline, you have to eliminate as much risk as possible by adding mats surrounding the trampoline.

    Because the athlete signed release forms, I agree that the gymnastics associations were not held liable but there could have been things to eliminate the risk. Isn’t that what risk management is?

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  3. How? What was not done? What more could have been done? Isn’t it possible that everything that was reasonable to do was done and somebody could still get hurt or die?

    At what point do you look at being a trampoline competitor and say I have to accept the risk of falling off the trampoline?

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  4. Kayla Castro says:

    In this case even though there are waivers being signed, it is still the duty of the gymnastics event to provide a safe environment in case incidents like this occur. Even thought these athletes are very well trained, anything can happen. In the future there should be more regulations for safety mats around a competition area. I feel the court decided justly in this case.

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