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Legally Speaking – with Bob Mionske: To sign or not to sign

Dear Bob;Your well written article Victimof Circumstance explaining the sixelements required to prove negligence brings about an interesting a question;as cyclists we all sign a plethora of Waivers / Releases throughout theyear for just about every event we participate in whether it is a raceor ride, or joining a team. My question is if signing a release or waivercan be upheld in a situation where true negligence on behalf of the promoteror organizers can be proven? Is it really possible to "Sign Your Life Away"?Best regards,R. S.NevadaDear R.S.;To fully address your question, it is necessary

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By Bob Mionske

Dear Bob;
Your well written article Victimof Circumstance explaining the sixelements required to prove negligence brings about an interesting a question;as cyclists we all sign a plethora of Waivers / Releases throughout theyear for just about every event we participate in whether it is a raceor ride, or joining a team. My question is if signing a release or waivercan be upheld in a situation where true negligence on behalf of the promoteror organizers can be proven? Is it really possible to “Sign Your Life Away”?
Best regards,
R. S.
NevadaDear R.S.;
To fully address your question, it is necessary that I briefly discuss“the law”, contracts, torts, pre-event releases (and their limits) andfinish up with several specific legal cases in which the underlying factsinvolve athletes have been injured in events in which they signed pre-eventreleases.When we think of “the law,” what comes to mind? How about all thoselaws the legislature makes? You know that phrase “the judge threw the bookat him”? Kind of conjures up an image of a stern judge with a fat statutebook and a strong pitching arm, doesn’t it?For most of us, the laws the legislature makes are the law, so maybeyou will be surprised to learn that the statutes are not the only laws.For example, there are constitutions, which are the law that establishgovernments and define their powers; there’s the common law, which is theentire body law resulting from centuries of judicial decisions; and thereare contracts. Does it surprise you to learn that every time you enterinto a contract, you are creating a private law between you and anotherparty?Contracts
So we’ve probably all signed contracts, but what is a contract, anyway?The general consensus is that a contract

is a promise or set of promises for breach of which thelaw gives a remedy, or the performance of which the law in some way recognizesas a duty.

There are three basic elements to every contract:The offer, which is an expression of willingness to enterinto a bargain;The acceptance, which is an expression of assent to the offer; andConsideration, which is an exchange of the promises and acts which are required to complete the bargain.If these three elements are present, a contract has been formed, and itcan be enforced by a court. So what do you do when the contract you’vejust entered into waives your rights? Have you really “signed your lifeaway?” Possibly, but not necessarily.Pre-Event Releases
Let’s talk about what a pre-event release is. When somebody organizesa cycling event, she has a lot of different tasks to pull together. Forexample, she needs to get permission from the responsible public agenciesto hold the event. She needs to find sponsors for the event. She needsto ensure that medical personnel are standing by. She needs to promotethe event and sign up riders. In order to gain the approval and participationshe needs, the organizer needs to assure everybody involved in assistingwith the event that they won’t be exposing themselves to lawsuits if theyparticipate. For that reason, the organizer will require riders to signa pre-event release that waives the participant’s right to sue; the releaseis a clause in the agreement, or contract, the cyclists sign when theysign up for the event. The technical term for these clauses is exculpatoryclauses.Now let’s look at some actual pre-event releases:In consideration for being permitted to participate in this event, I agree to assume all risks and to release, hold harmless and covenant not to sue the Organizer, any designated beneficiaries, sponsors, officials, participating clubs, communities, organizations, friends of the event, including the event medical sponsor, the Medical Director, and membersof the Medical Team, and all other government or public entities including,but not limited to, the Department of Transportation and affiliated organizationsand all their respective directors, officers, agents, employees and members(collectively, “the releasees”), for any claim, loss or liability thatI may have arising out of my participation in the event, including bodilyinjury, death or property damage, whether caused by negligence or carelessnessof the releasees or otherwise.For and in consideration of the right to participate in the event, the undersigned does hereby release, absolve and hold harmless the Organizer, their sponsors, heirs, successors, assigns, employees, agents and personnelfrom any and all actions, cause of action, liability or responsibilitywhat so ever, or any injury, harm, loss or inconvenience suffered or incurredby the undersigned during or as a result of taking part in the event.
Okay, that was a lot of fine print, wasn’t it? So besides lullingus to sleep, what are these releases really saying? Did you notice thatboth releases begin with the words “in consideration”? This is interestinglanguage, because, as we saw above, there are three basic elements to acontract: an offer, acceptance, and consideration.The offer being made is the right to participate in the event. The considerationthat will be accepted for this right is an agreement not to sue the Organizeror anybody else associated with organizing the event. The considerationoffered by the organizer is the rider’s actual participation in the event.By agreeing to the terms, the rider has accepted the offer.Now, before we get to your question, let’s first review some basicsabout negligence and other torts so we understand what it is you’re agreeingto with a release.Torts
A tort is any civil wrong, except breach of contract, for which thelaw provides a remedy—either money damages, or a court order. Here’s anexample: Suppose you enter a race, and you win. After the race, Roger Racer,another entrant who has a reputation as a sore loser, approaches you andaccuses you of cheating. Although you might be angry about the accusation,Roger Racer probably hasn’t done anything for which the law provides aremedy, because things like making you angry or hurting your feelings donot rise to the level of a civil wrong. Now let’s suppose that after therace, Roger Racer publishes a fabricated account of your alleged cheating.Now he’s done something for which the law does provide a remedy, and youcan file a lawsuit for libel.Although the law differentiates between civil and criminal wrongs, itis possible that the same act can be both a civil wrong and a criminalwrong. Here’s an example: After you win the race, Roger Racer approachesand punches you, saying “You beat me, now I beat you.” By punching you,Roger Racer has just committed a crime, and he has also committed a tort.If somebody has engaged in tortious conduct, the injured party can filea lawsuit against the responsible party, even if the act is also a crime.Now let’s look at some examples of torts. Negligence isan act, or a failure to act, which breaches a duty of due care that thedefendant owes to every other person. This duty of due care is to behaveas a reasonable person would under similar circumstances—a legal standardof conduct to protect others from unreasonable risk of harm. A breach ofduty occurs when a person’s behavior exposes others to unreasonable riskof harm, either by acting or failing to act as a reasonable person would.Those first three elements—an act or failure to act, a duty of due care,and a breach of duty—when combined form a negligent act. If the negligentact is both the actual and foreseeable cause of the defendant’s injuries,the law provides a remedy to right the wrong done to the plaintiff.Gross negligence is more extreme than ordinary negligencebut falls short of an intentional act. What separates gross negligencefrom ordinary negligence is a reckless disregard for the rights or safetyof others; this reckless disregard is manifested by a conscious indifferenceto the consequences of the negligent act. Here’s how it works: With ordinarynegligence, the negligent conduct breaches a duty of due care that thedefendant owes to every other person to behave as a reasonable person wouldunder similar circumstances, to protect others from unreasonable risk ofharm. With gross negligence, that breach of duty is done with consciousindifference to the likely consequences.Intentional acts differ from negligence in that the defendant must haveacted with the intent to cause the tortious injury to the plaintiff, whereasa negligent act—even gross negligence—does not include the element of intent.Some examples of intentional acts include:Assault– the intentional infliction of an apprehension of harmful or offensive contact.Battery– the intentional infliction of harmful or offensive contact.False Imprisonment– the intentional infliction of unlawful confinement.Intentional Inflictment of Emotional Distress.Trespass to Chattels– the intentional interference with the use or enjoyment of a person’s property. For example, if Roger Racer were to ride your bikein the event without your permission, that would be trespass to chattels.Conversion of Chattels– the intentional interference with the possessionor ownership of a person’s property. For example, if Roger Racer were tosteal or deliberately damage your bicycle, that would be conversion ofchattels.In addition to these intentional acts against your person or property,some other examples of torts that also may contain an element of intentinclude:Defamation– a false and defamatory statement.Invasion of Privacy– for example, publicity regarding a person’s private life.Okay, now that we understand the difference between negligence and other tortious conduct, let’s get back to your question: “Is it really possibleto sign your life away”? Possibly; however, although it may be possibleto “sign your life away” under some circumstances, there are limitationsto that. Let’s look at what those limitations are.The Limitations on Exculpatory Clauses
First, both of these events are open to minors; let’s look at the contractlanguage. On the first release, the minimum conditions necessary for participationare:

You must be at least 16 years of age, have medical insuranceat the time of the Ride, and agree to the following Agreement and Waiverof Liability.

Lets’ compare that with similar conditions in another release:

When no parent or guardian is assigned where indicated below,the entrant specifically warrants and represents that he or she is overthe age of 18 (eighteen) years of age and is not suffering under any mentalor physical infirmity which might adversely affect his or judgment or safety.

Unlike the first release, in this release, if the entrant is under theage of eighteen, a parent or guardian must also sign the release:

 I am the parent/guardian of the entrant, above, whois under the age of 18 (eighteen). By executing this document, I do consentto the entrant’s participation in the event. I do consent to the termsof the Release and I do further agree to be fully bound by the terms ofthis Release, both individually and as a parent/guardian of the entrant.

Because these events are open to participation by minors, both of thesecontracts raise issues of capacity, which refers to the mentalcapacity of the person entering into the contract. As a general rule, personsunder the age of majority—eighteen in most states—do not have the capacityto enter into contracts, and although they may sign a contract, the contractis not enforceable against them if they later choose to void the contract.With that in mind, the first release, if signed by a minor, cannot be enforcedagainst that minor if the minor later chooses to void the release.But what about that second release—the one that requires a parent’ssignature for entrants who are minors—can that release be enforced? Nope;when a parent signs a release, that signature binds the parent, but itdoes not bind the minor. If the minor later chooses to void the release,it cannot be enforced. Okay, so the release is not enforceable againstminors, but it is enforceable against adult riders, right? Not necessarily.Let’s look again at what the pre-event releases say to see who’s releasedfrom liability. With both releases, although you’ve agreed not to sue personsassociated with organizing the event, you haven’t waived your rights tosue another event participant for negligent or intentional acts. The onlyparties who are exempted from liability are the event organizer and othernamed parties associated with organizing the event. Okay, so you can sueevent participants and other parties not associated with organizing theevent, but you can’t sue parties associated with organizing the event,right? Not necessarily.If you look at the releases, they appear to release the organizers fromliability for intentional acts as well. That appearance is deceiving, becausepre-event releases cannot exempt a party from liability for intentionalacts. Thus, with any pre-event release you sign, you are not waiving yourright to sue any party for intentional acts; you are only releasing theorganizers from liability for their own negligence. Okay, so you can suethe event organizers or anybody else for intentional acts, but you can’tsue the event organizers for negligence, right? Not necessarily.Although the courts will uphold exculpatory clauses, they do so reluctantly.Thus, these clauses are interpreted very narrowly by the courts to exemptdefendants from liability for ordinary negligence only; wheregross negligence is alleged, the exculpatory clause willnot exempt the defendant from liability. Okay, so minors are not bound byexculpatory clauses, and nobody is immune from liability for intentionalor grossly negligent acts, but otherwise, exculpatory clauses will protectevent organizers from liability for ordinary negligence, right? Not necessarily.Depending on the state you live in, there are additional factors toconsider. Let’s look at two cases from California for an example. In thefirst case, Okura v. United States Cycling Federation, theplaintiff was a cyclist who was injured during a race sponsored by a localaffiliate of the U.S.C.F. The plaintiff, who had signed a pre-event release,fell when his bicycle hit loose debris as he was crossing railroad trackson the course. The issue before the Court of Appeals was whether the pre-eventrelease was valid under California law, which provides, in Civil Code Section1668, that

All contracts which have for their object, directly or indirectly,to exempt anyone from responsibility for his own fraud, or willful injuryto the person or property of another, or violation of law, whether willfulor negligent, are against the policy of the law.

Following guidelines established by the California Supreme Court for interpretingthe validity of pre-event releases, the Okura court upheld the pre-eventrelease largely because compared to banking, hospitals, escrow companiesand common carriers, a bicycle race is not a “service of great importanceto the public.” Furthermore, the court held, a bicycle race is “a leisuretime activity” and therefore “people are not compelled to enter the eventbut are merely invited to participate.” For these reasons, the Okuracourt held that the pre-event release did not violate California law.The second case illustrates the limits of those releases, however. InBennett v. United States Cycling Federation the plaintiffwas a cyclist who was injured after colliding with an automobile that arace attendant had allowed onto the closed racecourse. At issue was whetherthe pre-event release exempted the race organizers from all liability fornegligent acts, or whether they were only exempt from liability for foreseeablehazards. The Court of Appeals held that the pre-event release exemptedthe race organizers from liability for the reasonably foreseeable hazardsof racing, but that a jury must decide whether a car on a closed racecoursewas a reasonably foreseeable hazard of racing. As the court observed,

There is little doubt that a subscriber of the bicycle releaseat issue here must be held to have waived any hazards relating to bicycleracing that are obvious or that might reasonably have been foreseen. Asplaintiff points out, these hazards include “collisions with other riders,negligently maintained equipment, bicycles which were unfit for racingbut nevertheless passed by organizers, [and] bad road surfaces…” On theother hand, accepting plaintiff’s declaration that the course was knownto be and was in fact closed to automobiles before the race (presumablywhen he signed the release), it is doubtful whether he or any participantwould have realistically appreciated the risk of colliding with a car travelingin any direction along the closed racecourse.

Because the validity of pre-event releases in California now hinges on“reasonably foreseeable hazards,” the bicycle racing safety standards ofthe USCF and the Triathlon Federation will likely be an issue in futurenegligence cases; if the safety standards have been violated and an injuryoccurs, the pre-event release will probably not exempt the organizers fromliability for negligence.Keep in mind that Okura and Bennett are the law in justone state; other courts in other states may decide the validity of pre-eventreleases differently. As Okura demonstrates, state laws may invalidatesome exculpatory clauses, and depending on the state court interpretingthe release, it is possible that pre-event releases might be invalidatedas well.Even in the absence of a specific statute, courts may still rule againstpre-event releases. For example, West Virginia’s Supreme Court of Appeals,applying the same test that the California court used in Okura,reached the opposite conclusion in Kyriazis v. University of WestVirginia, when it held that a sporting event held by a state universityis a public service, and therefore, the pre-event release was void becauseit was against public policy. In Spencer v. Killington, Ltd.,the Supreme Court of Vermont also reached the opposite conclusion of theOkura court, when it held that a pre-event release for an amateurski race which was open to members of the general public was void becauseit was against public policy. In Oregon, a federal court held in Farinav. Mt. Bachelor that a pre-event release was against public policyand therefore unenforceable even for ordinary negligence becauseit

exculpates [the defendant] from liability for more thanordinary negligence, including gross negligence and wanton or wilful misconduct.This attempt to escape liability for more than ordinary negligence rendersthe release clause invalid.

And in Hiett v. Lake Barcroft Community Association, Inc.,the Supreme Court of Virginia held that a pre-event release signed by atriathlete who was rendered a quadriplegic during the swimming event wasinvalid because exculpatory clauses are against public policy.If You’re Injured
As you can see, pre-event releases that appear to “sign your life away”have a number of legal exceptions that make them less binding than theyappear to be, and depending on the jurisdiction, may even be held invalidas against public policy. If you are injured (and remember, an “injury”isn’t necessarily a bodily injury) as a result of somebody’s tortious conduct,and you have signed a pre-event release that purports to exempt certainparties from liability for tortious conduct, you should consult with anexperienced attorney to determine the extent, if any, that the releaseexempts those parties from liability.Good luck,
Bob
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)


Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.