What do most attorneys think of extreme sports? ABA article provides some idea of their thinking.Posted: June 10, 2014
Here are some interesting quotes from the article.
However, unlike in other sports, the inherent risks aren’t always obvious; indeed, they are often intentionally magnified to titillate participants and crowds. This pushes the new sport somewhat outside the traditional framework of negligence and assumption of risk.
There seems to be a theory that the inherent risks are part of the necessity of a release. I’m not sure I agree, but I always suggest you include the risks, inherent and otherwise in your release.
Indeed, Tough Mudder racers often brag about having “survived” the event after signing what they like to call the “death waiver,” essentially a catchy phrase for any liability waiver that encompasses death. Obstacle course racing companies routinely tout the fact that participants could die during their event, upping the ante for thrill-seekers.
You can die doing anything. Consequently, you should point out in any release that a participant can die. I’ve known of a two lawsuits where someone had a heart attack while rafting, then fell in the river.
But critics argue that the waivers don’t adequately disclose the full panoply of dangers, and that many of the obstacles are made unnecessarily perilous.
The issue here is if the injured plaintiff can argue and prove that you purposely left out risks your release may be void. You are always at risk if you increase the risk of an activity and do not inform your guests.
“Lines have to be drawn between what the participants are signing up for and what they’re actually getting,” says Sengupta’s attorney, Robert J. Gilbert of the Andover, Mass.-based firm Gilbert & Renton. “Participants sign up for the challenge, but it’s less clear that they sign up for the dangers—particularly the undisclosed dangers or gratuitous dangers.”
Here again, this is another argument showing that you cannot mislead your guests or participants.
For example, defendants typically cannot escape liability in the event that their conduct in any way increased the risk of the activity, say, purposely shaping a ski jump to be wantonly dangerous or failing to put water stations on a marathon course. Another question pertaining to the enforceability of a waiver is whether the risk could be removed without changing the nature of the activity.
The first issue is obvious. The second, whether the increased risk can be changed, is where people, in these case writers and attorneys get lost. They do not understand the personal and emotional goals someone receives when they reach these goals or participate in these sports.
The following quote sums up the legal issues that you must be aware of!
On the one hand Tough Mudder holds up signs saying ‘Remember you signed a death waiver’ … while trying to downplay the same risk that they’re encouraging their participants to accept. That leads to questions of fraudulent inducement.”
Fraudulent inducement voids a release, and in some states would make you liable for additional damages and/or claims of negligence greater than ordinary negligence.
What I did get a kick out of was the sign from the Tough Mudder events.
Based on the sign, I think you opted out of death, right?
Read the article and read the comments both are enlightening.
What do you think? Leave a comment.
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