Records help prove even if your release is weak, the plaintiff really understood the risks.
Plaintiff: Eric Walton
Defendant: Oz Bicycle Club
Plaintiff Claims: negligence
Defendant Defenses: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton
Holding: for the defendant
In Walton v. Oz Bicycle Club of Wichita, the federal district court upheld a release used in a bicycle race. The race was held in Wichita Kansas, by the Oz Bicycle Club of Wichita. The plaintiff was rounding a corner in the lead on an open race course when he swerved to miss a car and crashed. An open bicycle race course means cars are on the roadway. An open course is not closed to traffic or pedestrians. A closed course, all cars have been prohibited on the course.
The defendant bicycle club filed a motion for summary judgment, which was granted by the court. The plaintiff when he signed up for the race was handed a release which he signed. The plaintiff had raced twenty to thirty times before and signed releases each time. He did not read this release but had read others and knew what he was signing. Prior to the start of the race the plaintiff had been informed that the course was not closed. The plaintiff encountered traffic on the race course at least twice prior to his crash.
The plaintiff was an employee of a bicycle manufacturing company which was also a sponsor of the race.
Summary of the case
The court first reviewed the issue of whether Assumption of Risk was a defense at this time in Kansas. The court concluded it probably not because the Kansas Supreme Court had not handed down a decision that was specific in stating assumption of risk was a defense in Kansas.
The court quoted the heading and four paragraphs of the release in its decision. The heading of the release read: “NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.”
The plaintiff argued that releases were not favored under Kansas law; however, the plaintiff never showed how the release at issue, was void under Kansas law.
The court in one paragraph summed up the requirements for the release to be valid under Kansas law:
Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.”
The court looked at the release and found it to be valid. The release lacked the word negligence; however, it spoke to “rights and claims” for “any and all damages” sustained by participating in the event. The court concentrated on the fact the plaintiff had signed more than 20 other releases, participated in more than 20 races and had crashed in at least two races. This is another situation where the facts and knowledge of the plaintiff helped seal the release in the mind of the court.
So Now What?
It was obvious that the defendant’s ability to show the court 20-30 other releases for bicycle racing signed by the plaintiff was instrumental in proving the arguments of the plaintiff did not matter. You need to hold on to releases, you never know when one many years old maybe valuable in proving your case.
That does not require that you hold onto each paper copy of a release. Electronic copies are equally valid. Invest in a scanner and take all of your old releases and scan them. You can organize them by date or race or activity. You do not need to identify each release at the time. You cans scan them in a way that they are searchable later, and if you ever need to find one, you can.
Also instrumental was the fact the plaintiff was informed at the beginning of the race that the course was open, going to have cars on the course. Add to that the defendant could prove the plaintiff had avoided cars on the course during the race and had raced on open courses in the past. I would suggest putting important information such as the course being open into the release, so you can prove you gave the rider the information. Having that information in the release, should not, however, remove the responsibility to tell the people about the open course also.
While working at a ski area, we threw in the weather report and an area map into all big accident files. We never knew if any accident would lead to a suit, however, why worry about it. Make sure the file has everything you need, every back reference or proof needed when you build the file so you don’t have to search for it. We had a lot of stored weather reports and ski area maps, but if one was needed in a lawsuit, they were easy to find.
We also included all of the skiing history we had on the injured guest. Any logs from his skiing that year, each time his pass had been scanned if the injured guest had a season pass. Prior season pass or skiing history if we had it. Proof that the injured guest knew how to ski and assumed the risk or proof that the injured guest had signed numerous releases.
That ability to find information, electronically or on paper, saved the day in this bicycle race case.
What do you think? Leave a comment.
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