Ohio Appellate court upholds release for injury from bicycle race reviewing the steps needed to analysis the release by the courts.Posted: May 22, 2023 Filed under: Cycling, Ohio, Racing, Release (pre-injury contract not to sue) | Tags: Bicycle Race, Bicycle Racing, Case Western Reserve University, Greater Cleveland Sports Commission, Ohio, Release, USA Cycling, Waiver Leave a comment
Ohio is a state that supports the use of a release and this is a great decision to show you how to make sure your release is viable under Ohio law.
Goss v. USA Cycling, Inc., 193 N.E.3d 599 (Ohio App. 2022)
State: Ohio, Court of Appeals of Ohio, Eighth District, Cuyahoga County
Plaintiff: Heather Goss
Defendant: USA Cycling, Inc., et al. (USA Cycling, Inc. (“USAC”), Case Western Reserve University (“CWRU”), and Greater Cleveland Sports Commission (the “GCSC”))
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For Defendants
The court upheld the USA cycling release for the claims of an injured bicycle racer. The plaintiff argued the release did not cover the claims of the plaintiff and that releases should be void because the use of a release allows a business owner to be lax in its safety concerns for patrons and guests. The court found neither of the plaintiff’s arguments to be valid.
In 2016, the GCSC organized NEOCycle, a multi-day cycling festival featuring criterium races, where cyclists race numerous laps around a closed-loop race. The GCSC partnered with CWRU Cycling, a student-led cycling club, to organize the criterium races sanctioned by USAC.
Individuals involved in the logistical organization of the event included GCSC’s operation manager, Matthew Sajna (“Sajna”); CWRU staff-advisor, Ryan Pierce (“Pierce”); and CWRU students, Henry Bermet (“Bermet”), Jasper Stallings (“Stallings”), and Matthew Swartout (“Swartout”). With the exception of Swartout, the event organizers had minimal experience in designing criterium-race courses. More significantly, the event organizers did not receive specialized training in criterium-race course safety or design prior to the 2016 event. Id. Despite their lack of training, however, members of the CWRU Cycling club were directly involved in the design of the race course and the measures taken to ensure safe racing conditions.
As part of the registration process for the NEOCycle event, Goss executed a release form titled, “2016 USA Cycling Event Release Form AND One Day License Application” (the “Event Release”).
Goss had previously executed an agreement with USAC on April 14, 2016, in order to obtain a license from USAC to participate in USAC-sanctioned events in 2016. This agreement, titled “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant Not to Sue” (the “Licensing Release”), contained substantially similar language to that set forth in the Event Release.
On September 10, 2016, Goss participated in two separate criterium races at the NEOCycle event. In the morning event, Goss completed a 30-minute ride. Later that afternoon, Goss returned to the same course to participate in her second race. On the final lap of the second race, a cyclist in front of Goss unexpectedly fell on the final turn of the race. The crash caused many cyclists, including Goss, to lose control of their bicycles. Ultimately, Goss crashed into a barrier, causing injuries to her neck, thyroid, larynx, and trachea.
On April 2, 2020, Goss filed a civil complaint against the appellees, setting forth separate causes of action for negligence. In pertinent part, Goss alleged that USAC, CWRU, and GCSC each breached their duty to “exercise ordinary and reasonable care for the safety of [Goss]; to maintain said race course in a reasonably safe condition; to give warning of latent or concealed perils thereon, of which [they] knew or should have known; and not to expose such persons to unreasonable or foreseeable risk of severe bodily harm and injury.” Regarding the course conditions that allegedly led to Goss’s injuries, Goss asserted that “the race course design did not conform to USAC’s own safety standards, insomuch as there was insufficient distance from the race course’s final corner to the finish area. This insufficient distance caused racers to begin their ‘final sprint’ to the finish line before the final turn, thereby greatly increasing the chance for slide-outs and collisions.”
In the first assignment of error, Goss argues the trial court erred in finding that negligence as to race course safety and design was within the contemplation of the parties at the time the event release was executed. Consistent with the arguments posed before the trial court, Goss contends the Event Release was “too ambiguous or general to effectively waive the negligent conduct of the appellees.”
Analysis: making sense of the law based on these facts.
As in most cases the court started its analysis with a review of negligence in the state. Under Ohio law, to prove negligence the plaintiff must prove:
To establish a negligence claim, the plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty, and that the plaintiff’s injury proximately resulted from the defendant’s breach of duty.
This four-part test is the same as in the vast majority of other states who define negligence. The court then reviewed the Ohio law claimed by the defendants to stop the claims of the plaintiff.
It is well-established that Ohio law recognizes three types of assumption of risk as defenses to negligence: express, primary, and implied or secondary. Pertinent to this case, express assumption of the risk is applicable when the parties expressly agree to release liability. For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence
The requirement for a conscious choice to be made by the plaintiff is a different way of looking at the requirement that the release must clearly express the intent of the parties.
It follows that in order for a conscious acceptance to be made, an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence.”
Conscious choice in Ohio, when interpreting a release, means the release must be written to show the person signing the release understand that the person is giving up certain legal rights and cannot sue for their injuries.
The court then quoted the classic statement that releases are not favored under the law of the state. Which means nothing legally, it just reenforces the legal requirement that the burden to prove the release is valid is on writer of the release or the defendant.
Releases from liability for future tortious conduct are generally not favored by the law and are narrowly construed. Nonetheless, “courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.
The court then explains this “not favored” status further as the release must be written in a way that it is clearly understood by the plaintiff as to its purpose, the plaintiff is giving up his or her right to sue. If the release is ambiguous, if the language of the release does not clearly show to the plaintiff they are giving up their right to sue, then the release language is defined as ambiguous and possibly void.
On the other hand, where the language of the release is ambiguous or too general, courts have held that the intent of the parties is a factual matter for the jury. “The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved from liability for its own negligence.”
If the release, under Ohio law, is ambiguous, then the jury must decide if the plaintiff understood the purpose of the release. This is different from most states where an ambiguous release is void.
When the language of the release is clear, then the release is a matter of law. That means the release can be interpreted by the court, the case does not need to go to a jury.
When a writing is clear and unambiguous, the interpretation is a question of law. “Ambiguity exists only when a provision at issue is susceptible of more than one reasonable interpretation.”. Moreover, we must read the clauses as a whole, not piecemeal.
Then the release is interpreted by the court. Courts must review contracts, releases, by giving words their ordinary meaning. Does the document state in a way that is understood the intent and purpose of the document.
In interpreting contracts, “[c]ourts must give common words their ordinary meaning unless manifest absurdity would result or some other meaning is clearly evidenced from the face or overall contents of the written instrument. And, although not always explicitly referenced or relied on, the rules of grammar are elemental whenever reading and understanding any writing, especially a contract.
The court then reviewed the plaintiff’s arguments on why the release did not meet the requirements under Ohio law because the course was designed badly.
…that (1) “the race planners were students with no training, knowledge or experience in race course design and safety”; or (2) that “the student planners would ignore the recommendations of [USAC].” Thus, Goss contends that “because of the lack of any specificity regarding [the term] negligence in the Event Release,” “the lower court erred when it failed to find that reasonable minds could differ as to whether the unsafe design of the racecourse by uneducated, untrained and inexperienced students was within the contemplation of the parties * * * at the time of the execution of the Event Release.
It always seems to be a stretch, and in most cases it is, unless the court is going to rule against the defendant, that the facts argued by the plaintiff on what happened can affect the legal requirements of a release. However, plaintiff’s try to show the things that happened to the plaintiff were so bad or the actions of the defendant were so bad that the release should be void. Injuries to the plaintiff do not affect the legal issues of whether the release is valid. Actions by the plaintiff only are an issue if the actions rise to the level those actions were grossly, willfully or wantonly negligent in most states.
Here the court found the release did not contain any missing statements or errors that would provide a hole the plaintiff could use to argue the course design was not covered by the release.
Moreover, the Event Release executed in this case did not include an exception that would permit Goss to pursue a claim for damages arising from the appellees’ sole negligence. To the contrary, the Event Release directly contemplates the appellees’ own negligence and required Goss to acknowledge that she agreed “to waive, release, discharge, hold harmless, and promise to indemnify and not to sue” the appellees for damages arising from said negligence.
The plaintiff had argued that the release should be void because of several other arguments made in other legal decisions where the release was found to be void. However, those arguments were based on the idea that the plaintiff signing the release was not informed the release covered the negligence of the defendant. The language in those other releases the court argued
…the Event Release contained the words “release” and “negligence”; and is sufficiently clear and unambiguous as to both the type of liability being released (negligence) and the persons being released (event organizers). Here, Goss released the event sponsors and organizers from all claims arising from their own negligence to the maximum extent permitted by law, including any and all damages that may be sustained by Goss directly or indirectly in connection with, or arising out of, her participation in the cycling event. In this regard, the contract expressly stated that the release applied to “all races and activities entered at the event,” and further required Goss to acknowledge that “cycling is an inherently dangerous sport.” By signing the Event Release, Goss made the conscious choice to accept that she “fully assume[d] the risks associated with such participation,” including (1) the dangers of collisions with other riders; (2) the dangers arising from surface hazards, equipment failure, inadequate safety equipment, or the releasees’ own negligence; and (3) the possibility of a serious physical injury. Considering these terms collectively and in light of what an ordinary prudent person would understand, it is clear that the appellees were to be relieved from liability for any negligence claims relating to their organization of the cycling event, including pertinent hazards and the design of the racecourse.
The release the plaintiff signed expressly reviewed the possible risks that Goss received or argued in her case. This is another point for writing a release so the plaintiff is put on notice of the actual risks they are facing in the activity.
The court found the release specifically notified the plaintiff of the risks she may encounter in the race.
Under the doctrine of express assumption of risk, the terms of the Event Release prohibited Goss from advancing claims of negligence against the appellees. Accordingly, summary judgment in favor of the appellees was warranted as a matter of law.
The plaintiff then argued that releases should be void in Ohio because they took away the needed incentive to make sure that businesses would keep their activities safe.
In the second assignment of error, Goss argues the trial court erred by failing to adopt her argument that Ohio should void broad, nonspecific, ambiguous waivers of liability as a matter of public policy. Goss contends that by allowing a premises owner or occupier to obtain broad waivers of their own liability, an important incentive for the premises owners to maintain their premises in a reasonably safe condition would be removed, “thus forcing the public to bear the cost of resulting injuries caused by the [owner or occupier’s] own negligence.”
The court went back to the basics of release law. Releases in Ohio are valid unless they are against public policy, unconscionable, vague or ambiguous.
Generally, in Ohio, exculpatory clauses, which relieve a party from its own negligence, are not against public policy despite being disfavored in the law. Thus, “limiting or exculpatory language in a contract will be enforced unless the language is against important public policy concerns, unconscionable, or vague and ambiguous.”
Most courts have looked at this issue and held that recreation, like bicycle racing is not an issue protected such that a release covering it would be void as against public policy.
In this case, the exculpatory clause released the event organizers from liability for negligence claims arising from the cycling event. However, the Event Release did not authorize the appellees to exercise no care whatsoever. Nor did it permit the appellees to engage in willful or wanton misconduct. Given these remaining, meaningful protections afforded to the public, we find no basis to adopt a position that would effectively overturn the well-established position of this court that “a participant in a recreational activity is free to contract with the proprietor of such activity as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor except when caused by wanton or wilful misconduct.
This court found the plaintiff’s arguments were not valid because the release would not stop claims if the plaintiff could prove the actions of the defendant were unsafe to a large extent. The release would not stop claims that the actions of the defendant were wanton or wilful. Since that option was always available under Ohio law, the release was not void as against public policy.
In an interesting aside, the court looked at the validity of the release in question as interpreted by other courts. However, this was done in a footnote, not in the main argument of the case.
Although not specifically considered in the state of Ohio, the language contained in the Event Release generated by USAC has been considered nationally and found to be an adequate and enforceable release of liability where such releases are permissible.
The court uphold the lower court finding the release was valid and stopped the claims of the plaintiff.
So Now What?
First this is an important look at the issues facing releases under Ohio law. This court simply examined the claims of the plaintiff and showed how those claims were not met because the release met the requirements needed to be a valid release in Ohio.
Second the court pointed out an important point that many releases miss. The release is also an assumption of the risk document. In some states releases are termed assumption of the risk documents. To be an assumption of the risk document and stop claims, the release must list the possible risks the plaintiff might encounter and the plaintiff must agree to assume those risks.
Your release must include some of the risks that the plaintiff may encounter on the trip. I always suggest that the accidents and injuries that happen on every trip be listed. I also suggest the odd accidents or injuries that may only happen on your activity as well as the worse possible accidents that may result in paralysis or death.
For more cases looking at releases as interpreted by Ohio law see:
In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.
Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.
For more cases looking at releases and public policy see:
185 Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff
California case examines the relationship between a common carrier and public policy when applied to a ski area chair lift
Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal.
Federal court holds that under Minnesota law, a release signed at a ski area did not violate MN Public Policy
Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release
For more cases reviewing releases and bicycle racing see:
Decision concerning bicycle race clarifies Illinois release law.
PA court upholds release in bicycle race.
Release and proof of knowledge stop claim from bicycle racer.
Release for bicycle tour wins on appeal but barely
Release stops one of the first lawsuits over bicycle racing.
|Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us|
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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