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By Charles Pelkey
I just read in the local paper that a county judge hearing a lawsuit against the Tour de ‘Toona ruled that a waiver, signed by a woman who was later injured and paralyzed in an accident at that race, will keep her from recovering any kind of damages. It’s a sad case and it got me to thinking.
Now, I’ve signed more than my share of those things over the years and I always had a nagging belief that they really weren’t worth the paper they’re printed on. How many of us actually read them? How many of us actually think about them when we sign them? As one of my teammates once said, “Any lawyer worth his salt can beat one of those.”
I have my doubts, though, especially after this case. What are you signing away when you put your signature on the dotted line?
Well, to start, my answer in no way suggests that I am providing you with legal advice, beyond saying that reading those release forms is a pretty good idea. In fact, I can confidently say that you should never sign anything without reading it first, even if that jumpy masters’ racer standing in line behind you is telling you to get a move on so that he can warm up for his criterium.
By signing a waiver, you not only indicate that you read the contents, but that you agree with the provisions of that document.
Now is the time to become a spectator
Back in the ‘80s, any bike race here in Wyoming usually began with the same recitation by good old Mark Ward, the district rep’, chief commissaire and organizer of pretty much any bike race we had a chance to ride in those days.
Mark, usually resplendent in a striped referee’s vest most of us thought was stolen from some guy who officiated local soccer games, would march up to the front of the peloton in every race, hold a bullhorn up to his mouth, and loudly declare:
“Have you read the release form that accompanied your entry form today? Do you understand the release form that accompanied your entry form today? Did you sign the release form that accompanied your entry form today? If you answered ‘no’ to any of these questions …” and then Mark would pause to allow all of us to shout along with the punchline: “… now’s the time to become a spectator.”
It was a running joke for most of us, but I’ve since had a chance to study the subject tort liability up close and I now see it for what it was … namely the icing on Mark’s CYA cake.
Mark wanted more than the signature. He wanted us to acknowledge that we read the thing and understood it before we signed it. He also wanted a handful of witnesses who could attest to those facts.
So what were we signing? We were signing a document that was the 1980s version of what USA Cycling calls its “Cycling Event Release Form.” You can find it in the rule book. You can find it accompanying any entry form for a sanctioned event. And you can even find it on the Web.
You know the form. We’ve all seen it. It’s evolved over the years, but it’s pretty much the same document we signed in the old days. You’ll see variants of the waiver at virtually any event that carries insurance and the sanction of a governing body. The print is admittedly small, but the folks who drafted the form knew what they were doing when they put it together, including putting key portions in bold and underlined capitalized type, beginning with:
I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY THE ORGANIZER OF THIS EVENT AND USA CYCLING, INC. (USAC), ITS ASSOCIATIONS (THE UNITED STATES CYCLING FEDERATION (USCF), NATIONAL OFF ROAD BICYCLE ASSOCIATION (NORBA), NATIONAL COLLEGIATE CYCLING ASSOCIATION (NCCA), U.S. PROFESSIONAL RACING ASSOCIATION (USPRO), AND BMX ASSOCIATION (BMXA)), AND USA CYCLING DEVELOPMENT FOUNDATION (USACDF), AND THEIR RESPECTIVE AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, CLUBS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY “RELEASEES”), AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS RELEASE IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES AND IT APPLIES TO ALL RACES AND ACTIVITIES ENTERED AT THE EVENT, REGARDLESS WHETHER OR NOT LISTED ABOVE. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING.
Keep that in mind. The form releases the promoter, the governing body, officials (and probably their second cousins in New Jersey) from liability, even when it comes to negligence — a failure to address a reasonably foreseeable risk. You are also reminded that you are signing a form that represents “A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES.…”
And just in case you forget, the form goes on to remind the signer:
THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THIS EVENT, whether as a rider, official, coach, mechanic, volunteer, or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION …
It was that document that Blair County District Judge Tim Sullivan reviewed when he ruled that the waiver was binding and the plaintiff bound by its terms. Sullivan noted that there was nothing ambiguous about the document and that it contained language that the average rider could easily understand.
You’re right in doubting your teammate’s observation that “any lawyer worth his salt can beat one of those.” In reviewing the briefs submitted in the case, it’s clear that attorney Marcy Colkitt is well worth her salt. From the looks of it, she did a fine job of trying to attack the release and to show that the race director’s behavior transcended ordinary negligence. The judge’s decision, however, underscored just how high a hurdle those releases present to a plaintiff.
Indeed, I contacted several other attorneys worth their salt – some of whom even ride bikes competitively – and they all agree that a well-written waiver can serve as a very effective shield for a promoter.
Here in Wyoming, the legislature has even put similar language into statute. Originally drafted with local amateur rodeos in mind, the law was later expanded to include a variety of sporting events, using language quite similar to that used in the above-mentioned release form. The Wyoming Recreation Safety Act notes that:
Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.
There’s a good chance your state has a similarly worded statute on the books as well.
So as tight as the release forms and the statutes might be, does that mean that a promoter is completely absolved of any responsibility when promoting an event? Does the waiver ensure that you’ve completely signed away all of your rights?
Well, probably not. While the release form does provide for indemnification, it doesn’t mean that a promoter can just throw caution to the wind. You might note that the Wyoming statute includes the word “inherent,” suggesting that if a promoter really blows it, you might be able to prove that the dangers encountered were beyond those that a reasonable person might consider to be inherent in a given activity.
A couple of years ago, in the case of City of Santa Barbara et al. v. Superior Court, the California Supreme Court ruled that a signed liability waiver does not completely immunize an organizer of an event, in this case, the city of Santa Barbara. The parents of a disabled child sued the city after that child had drowned in a city-operated swimming pool in full view of city employees who had been hired to act as life guards.
The justices made a point of saying that courts don’t particularly embrace the idea that anyone can simply sign away rights – including the right to sue.
“Traditionally the law has looked carefully and with some skepticism at those who attempt to contract away their legal liability for the commission of torts,” the decision noted. “Courts and commentators have observed that such releases pose a conflict between contract and tort law.”
Nonetheless, in earlier decisions, the state’s high court held that a waiver may stand, but only if it does not “involve (and impair) ‘the public interest.'”
In the Santa Barbara case, the California court found that the parents had little choice but to sign the release if they wanted their child to participate in a publicly funded activity. In applying that public interest approach in the Santa Barbara decision, the court narrowly focused on activities that constitute “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.”
It might be tough to argue that participation in your local office park criterium would meet that standard.
In this case, the court held that the release still protected the city against “ordinary negligence,” but it also found that the city and its employees at a local swimming pool were guilty of acts of “gross negligence” that resulted in the death of the child. The court defined the behavior that constitutes gross negligence as “an extreme departure from the ordinary standard of conduct.”
A similar issue was raised in the Pennsylvania case, but the court there concluded that the promoter’s failure to place a safety barrier at a potentially dangerous turn did not rise to that level.
Indeed, it may require that behavior by the promoter rise to the level of recklessness before you have an easy shot at negating that waiver. Recklessness is usually characterized by a “defiant disregard for danger or consequences.”
In layman’s terms, that’s a completely boneheaded move on the promoter’s part, something akin to scheduling a mountain bike race through the meadows of a local game farm at a time when he knew my fellow Wyomingite Dick Cheney and his buddies would be there hunting for quail.
The bottom line, J.D., is that your teammate’s assessment is probably wrong. Like my old buddy Mark said, if you don’t read, understand and agree with the provisions in the release form, it’s probably a good idea to spend the day as a spectator.
Email Charles Pelkey