Older Nevada Supreme Court Decision holds releases are only proof of assumption of the risk if the release meets the assumption of risk requirements.Posted: June 18, 2018 Filed under: Assumption of the Risk, Nevada, Release (pre-injury contract not to sue) | Tags: actual knowledge, assumption of the risk, essential element, fact finder, free fall simulator, free-fall, Freefall, Freefall Simulator, genuine issues, matter of law, Release, risks associated, simulator, Summary judgment, utilizing, voluntarily assumed Leave a comment
In Nevada to Assume the Risk, the plaintiff must voluntarily expose themselves to the risk and have actual knowledge of the risk.
Renaud v. 200 Convention Center Ltd. dba Flyaway, 102 Nev. 500; 728 P.2d 445; 1986 Nev. LEXIS 1623
State: Nevada, Supreme Court of Nevada
Plaintiff: Sherri Renaud
Defendant: Convention Center Ltd. dba Flyaway,
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For the Plaintiff
Nevada Supreme Court holds a release is only proof of assumption of the risk and is NOT absolute proof. The defendant still must prove the plaintiff voluntarily assumed and have knowledge of the risk.
The good news is this decision has not been used in any additional Nevada decisions or a decision in any other state.
Plaintiff went to the defendant’s business wanting to experience a free fall simulator. Before participating, she signed a release.
After the plaintiff was injured and sued, the defendant filed a motion for summary judgment based on the release signed by the plaintiff. The motion was denied because it did not prove the plaintiff voluntarily assumed and understood the risks.
Analysis: making sense of the law based on these facts.
Under Nevada’s law, Assumption of the risk has a two-prong test to be proved.
First, there must have been voluntary exposure to the danger.
Second, there must have been actual knowledge of the risk assumed.
The plaintiff argued, and the Supreme Court agreed with her argument that she did not fully understand the risks of simulated free fall. That waiver of the facts, that can be interpreted in more than one way is enough to eliminate a motion for summary judgment.
So Now What?
Who knows why the Nevada Supreme Court made this decision. However, this shows the reason why you list the possible risks of your activity in your release. A pure legal document as a release can only be used as that, a pure legal release.
If the release is thrown out for any reason, if you have listed the risks of the activity in the release, you can argue it should be used to prove assumption of the risk.
Here when the court decides that a release is not longer a contract not to sue, but attempted proof of assumption of the risk, it becomes critical.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
By Recreation Law Recfirstname.lastname@example.org James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,