In this cycle race case, the release was void by state law, but could still be used to prove assumption of the risk.Posted: September 17, 2012
At trial it is too late to find out that the release you had everyone sign has no value.
This is a motion hearing in Federal District Court for the great Western Stage Race held in Missoula. Montana by statute does not allow the use of a release. See States that do not Support the Use of a Release. The plaintiff was attempting to have two issues precluded from the trail:
· The fact the defendant was a non-profit.
· The fact the plaintiff signed a release which is void under Montana’s law.
To do that, you file a motion in limine. A motion in limine argues before the judge that because of a statute or the laws of evidence something the other side is going to try to say or introduce as evidence should be excluded. See Why accident reports can come back to haunt youfor more on motions in limine.
The facts that gave rise to the case are the plaintiff was a competitor in the bicycle race. During the race, a pedestrian darted out in front of him and caused him to crash. He was claiming, “alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course.”
The first issue, the non-profit status of the defendant was quickly granted. Because most states have statutes, which state a non-profit is the same as a for-profit corporation, the issue of the defendant being a non-profit would only prejudice the jury.
The second issue, the release is of more interest. Pursuant to Montana’s law, a release is void and against public policy.
M.C.A. § 28-2-702 Contracts that violate policy of law — exemption from responsibility.
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.
So the release signed by the plaintiff in this case could not be used as a release. The plaintiff’s motion in limine was to exclude the release for any purpose; the jury would never know a release was signed.
The court held the release could be used but only to the extent to show the portion of the release which showed that he was aware of the risks of the race.
The mention of the release form for the purpose of proving that no liability exists is prohibited. However, the Defendants should be allowed to show that Mr. Ganz [the plaintiff] signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety to the jury.
Dependent upon how the release was written and the statement of the risks in the release, this could be a powerful document showing the plaintiff knew of and assumed the risks.
So Now What?
Make sure your release is written to include the risks of the activity or program. There are several reasons for doing this.
· Guests who have no clue will have a better time if they understand the risks.
· Guests who read about the risks have a better understanding of the risks and decided if this is the type of opportunity they want to take.
· If your release is thrown out, you can still use the release as proof the plaintiff assumed the risk.
You can’t write all the risks into a release. However, you can write in the following:
1. Those injuries that are common to the activity or program.
2. Those injuries that can cause permanent injury or death.
3. Those risks which are different in your activity from the normal or competitive activities.
The second group is easy to identify. If it is rock climbing, it is falling or having something fall on you resulting in permanent injury or death. In paddlesports it is drowning, hypothermia, or a “near-drowning” resulting in brain injury.
The first is also easy. Look at every injury you have ever seen in your activity. Injuries from falling on the hike to the base of the climb or falling down carrying a boat to the river. After lunch on the river, people sit on a hot raft getting a burn or rope burn while belaying. Those injuries that are not life threatening but occur regularly and deplete your stock of band aids.
The third category is a little harder. How is your program or activity different from the rest of the people in your industry. If the majority of climbing walls have padding on the floor, and yours does not you should identify this as a risk. In cycling, you need to identify if you have a closed course, a race course without cars on it is critical for participants to know.
As always, you have to have your release created by someone who understands your risks, your sport your activity and knows how to write a release.
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