Liabilities and waivers for recreational activities
By Ken Gorman
Lombardo and Gilles
Everyone has signed one before
– a waiver saying that a league, company or coach is not liable
in the case of an injury. The law regarding sports injuries is
evolving as courts wrestle with two competing goals: encouragement
of sports for the health and enjoyment of citizens and the
protection and compensation of those who are
injured as a result of the negligence of others.
Liabilities and waivers for recreational activities
By Ken Gorman
Lombardo and Gilles
Everyone has signed one before – a waiver saying that a league, company or coach is not liable in the case of an injury. The law regarding sports injuries is evolving as courts wrestle with two competing goals: encouragement of sports for the health and enjoyment of citizens and the protection and compensation of those who are injured as a result of the negligence of others.
There are two broad conclusions: 1) there is no liability for any injury that is reasonably inherent in the sport; and 2) waivers of liability for anything other than “gross” negligence are valid.
California courts have adopted “assumption of the risk.” Anyone who voluntarily engages in a sport is deemed to have assumed the risk of any injury that is reasonably inherent in the sport and so cannot recover damages. Most of the reported cases come from ski resorts. The courts have uniformly held that a ski resort is not liable for injuries or even deaths caused by things like moguls, ice or collisions with trees.
The courts have also held that injuries inflicted by other persons are often inherent, such as a broken leg in a judo lesson, getting hit by a pitch in baseball (throwing at the batter is part of the game), collisions with reckless skiers and getting hit with a golf ball (the Supreme Court noted there would not be much sport in golf if the ball always went where the golfer wanted it to). In a severe application of the rule, the Sixth District Court of Appeal, which covers San Benito, Santa Cruz, Monterey and Santa Clara Counties, recently held that a passenger on a jet ski going 5 mph that was rammed by another jet ski assumed the risk of death. This case may be appealed to the Supreme Court, but the case shows how powerful “assumption of the risk” is.
Exceptions to the assumption of the risk rule are rare, but do exist. For example, a Court of Appeal in California held that a 14-year-old member of a school swimming team could sue for injuries she sustained diving into the pool. While that seems like an assumed risk, the girl was deathly afraid of diving and her coach promised she would never have to dive. But when a big meet came up and they were short a diver, the coach coerced her into diving. She hit the bottom of the pool, just as she feared, and became a quadriplegic. The Court ruled that a jury could find that her participation was involuntary.
Assumption of the risk does not apply where the provider of the facilities or services increases the risk above that which is inherent, such as a dive shop mixing tank gases incorrectly and an aluminum baseball bat that exceeded NCAA “rebound” velocity regulations.
In one of the few decisions against a ski resort, it was held that lack of padding in front of a ski lift support column was potentially negligent, since it was not a natural condition of the slope, the cost to pad the post was minimal and it was foreseeable that a skier might hit a column in the middle of the slope and, unlike a tree, a post is not a natural condition.
Almost all sports facilities require participants (or their parents) to sign waivers releasing the business from liability for any injury. The waivers give very broad protections to the business. Early court cases invalidated waivers because they were hidden in pages of legalese, but most recent decisions have upheld waivers so long as they are fairly prominent and explicit.
The difference between assumption of the risk and a waiver is that assumption of the risk applies whether or not the injured person realized they might get hurt. If any reasonable person should have known that type of injury would have occurred, the claim will be barred. A waiver only applies to things that are specifically stated in the document. A person who signs up for a horse trail ride assumes the risk of falling off the horse for many reasons, but not that the outfitters fitted the saddle wrong so that it fell off. If that was specified in the waiver it would be covered.
Most people agree that if they pull a muscle lifting weights or break an arm falling off the uneven bars it is their own fault, but they would not think they were signing away their rights to sue if the weight rack broke or the bars collapsed. But under some recent decisions these claims would be barred, even given the impracticality of patrons inspecting the equipment. In a sign that the trend may be shifting back, a 2007 decision held that a patron running on a treadmill who stepped onto a patch of an adhesive causing her to be thrown backwards off of the treadmill could sue for negligent maintenance of the equipment.
The Supreme Court has ruled that waivers cannot void liability for gross negligence. Gross negligence is reckless, wanton or willful misconduct, not mere neglect. Query: if a business does not inspect or maintain its equipment for ten years, is that neglect or gross negligence? Neither the courts nor the legislature have provided an answer.
These issues may come before the Supreme Court soon. Meanwhile, potential customers should read their membership applications and waivers carefully.
This column is the work product of Lombardo & Gilles, LLP, which has offices in Hollister and Salinas. Ken Gorman is an attorney with Lombardo & Gilles, LLP. You may contact the author at (888) 757-2444 or email to [email protected]. Mail your questions to Ken Gorman, It’s the Law, c/o The Pinnacle, 380 San Benito St., Hollister, CA 95023.
