Running the trail, December 2005
I don’t think I’ve ever used this blog to crowd-source actual legal work, but, what the hell…
As regular readers know, I not only like to run (Boston Marathon in three weeks, if the hammy stays healthy) but am also the founder and race director for a half-marathon trail race in Westchester County.
This puts me at the junction of two concepts: First, putting on a fun running event, and two, trying to avoid potential injuries for my athletes and lawsuits.
Now, generally speaking, an athlete can’t successfully sue a person or organization putting on an athletic event due to the concept of assumption of risk. Assumption of risk means, generally:
By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.
So how does a lawyer protect the organizers? Well, since the time of the dinosaurs, it has been by WRITING IN ALL CAPS BECAUSE IT IS SO EASY TO READ and using godawful legalese. This also ensures that no one actually reads the piece of paper that will get waved around to defend a lawsuit later.
But — and you knew there was a “but” coming didn’t you? — it isn’t that I’m worried about being sued, what I want first and foremost is to prevent injury. So I wrote my own waiver, trying to make it as readable as possible. And I offer it up now for your comments as to what it is missing or how it should be changed. Without further ado…a waiver for a trail race…
I realize that this trail has plenty of rocks, roots, stumps and other tripping hazards. There are two stream crossings with stepping stones. The trail is narrow at times and could be crowded as faster runners overtake slower ones. There might be poison ivy, ticks, bugs, bees and other woodsy things you find in the great outdoors. (Is this a great waiver, or what?)
Wind and rain may create mud holes, fell trees and limbs and create hazards that race officials don’t even know about. Vandals may swipe trail markings. Race officials may deliberately create extra hazards. Just for fun.
I’ve also been informed that there are a number of wooden catwalks, whose condition varies with their age and the weather. Those boards can become damaged in storms, or simply be jarred loose by other runners. They are also very slippery when wet. I agree to stay in the center of these walks and will not pass while on them. I understand that I will have more than ample opportunity to pass other runners in safer spots. In other words, I agree to cool my jets on the catwalks.
I also understand that there are only three water stops, so it’s important to carry a water bottle and any food that I want.
But even though I might get hurt or lost, I want to compete in this race. I therefore release and discharge all race officials, volunteers, sponsors and municipalities, and I also release the rocks, roots, bugs and other stuff, dead or alive, gnarly or not, that might cause me to get seriously hurt. I know that trail running is a high-risk activity.
By signing this form I certify that I am physically fit, responsible for my own actions, and have sufficiently trained for an event of this nature. In other words, I won’t sue any of the people or groups responsible for this race if I get hurt. And if I am under 18, then my parent or guardian is signing this release.
I agree to all of this even though it is written in plain English instead of stupid legalese.
Update: Something else to add, perhaps:
This trail has known knowns; there are things I know that I know.
I also know there are known unknowns; that is to say I know there are some things I do not know.
But there are also unknown unknowns – there are things I do not know that I do not know.
And I accept the risks of all of that. Known and unknown.
Update #2 (3/31/12): At Legal Blog Watch, Bruce Carton made some additional suggestions.
Ticks has a k in it. Hope I was of service.
Ticks has a k in it. Hope I was of service.
My fantasy is that this would be the only problem with it. Corrected. Thanks.
Ineffective to release your own negligence because it doesn’t specifically reference your own negligence. Gross v. Sweet, 49 NY 2d 102 (N.Y. 1979):
By and large, if such is the intention of the parties, the fairest course is to provide explicitly that claims based on negligence are included (see Ciofalo v Vic Tanney Gyms, supra, p 296 [plaintiff “agreed to assume full responsibility for any injuries which might occur to her in or about defendant’s premises, `including but without limitation, any claims for personal injuries resulting from or arising out of the negligence of’ the defendant”]). That does not mean that the word “negligence” must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear (see Theroux v Kedenburg Racing Assn., 50 Misc 2d 97, 99, affd 28 AD2d 960 [agreement provided for release of liability for any injury “regardless of how such injury * * * may arise, and regardless of who is at fault * * * and even if the loss is caused by the neglect or fault of” the defendant]).
What I, a mere paralegal, have never understood about these waivers is what exactly the participants are waiving. The participants are assuming the risk regardless of the existence of the waiver. What difference would it make whether or not you have this piece of paper to take to court?
Max and Richard:
In New York, the concept of primary assumption of risk is premised on this:
By electing to participate, the plaintiff is deemed to have consented “to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation.”
Thus, the waiver isn’t just a waiver, but a means of informing the participant of what they might reasonably expect.
Once an injury falls within this meaning, the issue of comparative negligence (if a competition’s organizers foul up) become irrelevant.
Primary assumption of risk essentially eliminates the defendant’s duty of care to the plaintiff for a competitive athletic activity, thus rendering the concept of comparative fault irrelevant, assuming, of course, that the risks were inherent in the activity.
See, for example, Trupia v. Lake George School District and the differences between “horseplay” and a risky competitive event:
http://www.nycourts.gov/reporter/3dseries/2010/2010_02833.htm
@Richard Hershberger – Not being in a legal profession myself, I’m not entirely certain, but I think that the difference is their explicit agreement that the things laid out in the waiver are not the fault of the person/people in charge. Without the waiver, they could claim in court that they WERE NOT AWARE of the risks involved, AND that they did not GIVE CONSENT to be subjected to those risks. Signing the waiver is intended to protect the waiver-offerers from such legal recourse.
Why? Why couldn’t a waiver be written in plain English? You forgot the part about indemnity from runners who ignore the rules and wear headphones, thereby rendering “ON YOUR LEFT” totally pointless. 🙂
Why? Why couldn’t a waiver be written in plain English?
Sorry for the gobbledegoo. I think I have to kill the word legalese at the end.
Let’s see if I’m getting this right. The point of the waiver is not really for the participant to waive his right to sue, but to put him on notice about the potential hazards, and thereby remove the argument that these hazards were not apparent or reasonably foreseeable. If this is the case, then it seems to me that a waiver in legalese would be open to the argument that a participant unversed in the lingo isn’t being put on actual notice, any more than if the waiver were in Chinese.
…it seems to me that a waiver in legalese would be open to the argument that a participant unversed in the lingo isn’t being put on actual notice, any more than if the waiver were in Chinese….
Correct. But even more important than the suit, is that I don’t want people to get hurt to begin with. This should give runners a sense of what to expect and to consider if this is the type of event that is really in their blood.
@Eric Turkewitz – thanks. i was getting confused.
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