February 14th, 2013

Another Legal Waiver (A little help here?)

You guys know how much I love legalese, right?

Last year I wrote a waiver for a half marathon trail race that was crowd-sourced a bit. It came out great, in my not-so-humble opinion.

I’m now doing another one for participation in my little running club. Any comments or suggestions are welcome. You can find a little background on the concept of assumption of risk for athletic events here.)

This is a draft of the document club members would have to sign…and if you know about a Legal Waiver Hall of Fame, please let me know:

——————–

Club Membership Agreement and Waiver

I’m reading this because legal waivers are incredibly exciting documents. It’s always fun to see how lawyers butcher English, making it incomprehensible to mankind. I’m looking forward, especially, to ALL CAPS, since I know that’s how these things roll.

I know, of course, that I have to read and sign this, because running in and volunteering for organized group runs, social events, and races are potentially hazardous activities. It’s possible that I could be injured or somehow squashed like a bug. I certainly hope that doesn’t happen, but life is unpredictable when you engage in athletics.

I’m smart enough to know that I shouldn’t participate in any club-organized events without being in appropriate physical shape. Doing otherwise would be stoopid. With my John Hancock at the bottom, I certify that I’m medically able to engage in all activities associated with the club, that I’m in good health, and properly trained. Yay me!

And because I want to participate, I agree to abide by rules established by the club, even if they don’t seem to make sense at first blush. This includes the right of any official to deny or suspend my participation for any reason whatsoever. I think this is what the lawyers mean when they say they don’t “always seem to make sense at first blush.”

I attest that I have read the rules of the club and agree to abide by them. If I haven’t actually read the rules, and am just claiming that I have, this will be my problem.

Some of the risks associated with participating in club activities may include falls, contact with other participants, weather effects, traffic and the conditions of the road or trails, all such risks being known and appreciated by me. There might be, for example, bicycles, skateboards, baby joggers, roller skates/blades, dogs, and alligators. I realize that the lawyers just kinda tossed in the alligators to make sure I was still reading.

Sometimes, of course, there will be unexpected problems, deviations, and detours. Trail running in particular, may have risks that are unforeseen even by organizers.

Having now read this waiver, and being appreciative of the lack of ALL CAPS, I (and my heirs should I kick the bucket), waive and release NewRo Runners and all club sponsors, their representatives and successors (and anyone else a lawyer can dream up) from all claims of any kind arising out of my participation. I also grant permission to all of the foregoing to use my photographs, motion pictures, recordings or any other record for any legitimate promotional purposes for the club.

——————

Any suggestions regarding things that I left out, or ways to improve it, please let me know…

January 10th, 2013

Injured In Softball, Teen Gets 2nd Chance at Trial

Your basic L-Screen, which looks like the one described in the opinion

The Second Department yesterday reinstated a case where a 14-year-old was pitching batting practice and was hit in the face with a line drive. The case had originally been a defense verdict at trial. As you read, try to figure out whether this was a question of fact for a jury or an issue of law for the court.

Before hitting the facts of Weinberger v. Solomon Schecter, this is the basic law in New York on primary assumption of risk, the rule that says you can’t successfully sue someone if injured in an athletic pursuit:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity 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…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

OK, with that nugget in your back pocket we can look at the facts.

A 14-year-old high school freshman with limited pitching experience was throwing batting practice from several feet in front of the very muddy mound area. The L-screen that was supposed to be used, and was supposed to be free standing, was busted. It was propped up between benches, but kept toppling over.

After it fell over one last time, the teen kept pitching without the screen being used. Why? There was mixed testimony at trial as to whether the coach told the kid to keep pitching (two non-party witnesses and the injured youth) or asked the kid if she was OK to keep pitching (the coach).

Does the doctrine of assumption of risk come into play here when the line drive slams into this young woman’s face? A bit more on the law…

the primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased. Awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.

Is this a question of fact for the jury or a question of law for the judge? The trial court ruled that the issue of primary assumption of risk was one for the jury in this instance and charged that jury that if they found this assumption of risk, the verdict must be for the defense. And that was what the jury did.

Wrong move, said the appellate court. This is a matter of law for the court, and these circumstances didn’t warrant such a finding or such a charge to the jury. The court reasoned that:

The faulty equipment provided by the School and the decreased distance between S. and the batter, from which she was pitching at the direction of [the coach] without the benefit of the L-screen, did not represent risks that were inherent in the sport of softball and, instead, enhanced the risk of being struck by a line drive.

And so the case was sent back for a new trial.

Does this mean the young lady will win? No, it doesn’t. The jury will still get to assess whether she was comparatively negligent in the accident, and that would reduce any potential verdict if such a finding is made.

This is an interesting decision and analysis for any sports related injury. While the inclination of most practitioners is to simply reject such cases outright, there are sometimes certain circumstances that will make you stop and say, wait, that isn’t a commonly accepted risk.

A few other assumption of risk pieces I have, simply because the sports-related injury is interesting:

A Personal Injury Waiver

Reach the Beach Relay (And Assumption of Risk)

The Wife, The Tushy Bone and The Waterpark (Assumption of Risk, or Not?)

March 28th, 2012

A New Personal Injury Waiver (Updated x2)

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.

September 18th, 2011

Reach the Beach Relay (And Assumption of Risk)

Did you ever want to go racing along rural roads in New Hampshire at 2 a.m., guided only by a headlamp, some signs, and the blinking butt-light of others? And several miles later you get to climb into a van full of other sweaty, smelly runners wanting to do the same thing? I thought so.

You can see a map of the 200-mile race course of the Reach the Beach Relay to the right, starting at Canon Mountain in the White Mountains and ending at little Hampton Beach, New Hampshire’s sliver of actual Atlantic Ocean coastline.

For those not clued in to this little race, teams are usually comprised of 12 people split between two support vans. The 200 miles is diced up into 36 legs. Runners in van one each take turns with the first six legs and then hands off to van two. Then repeat. Again and again until all 36 legs are done and you’ve spent 24-30 hours of your life either running or supporting other runners, and maybe catching an hour or three of sleep at most.

That means, with 434 teams, about 4,000-5,000 runners using 800 support vans on a mass migration across the state of New Hampshire at the speed of foot. Sounds like fun, right?

Hello Kitty. Athletic Club. Really.

And I should probably mention that one of the 434 teams is the Hello Kitty Athletic Club, who show up with pink bathrobes, Girl Scout sashes, and Hello Kitty hats? One carries a pink parasol. Then they will humiliate you by beating you. And everyone else. And run the 200 miles at a pace of 5:53/mile as they did this year.Here’s a video of them talking smack a couple of years back. This will not be my team, ever, but let’s face it, you wouldn’t want to miss this, would you?

Because this is a law blog, I’ll try to tie this weekend’s adventure into that subject. But let’s face it, sometimes a guy just has hunt down adventure for the hell of it. (When I wrote about running the Boston Marathon two years ago, I didn’t even try for a legal tie-in.)

Since I’m also the Race Director for the Paine to Pain Trail Half Marathon (October 2nd this year), I have other concerns about runners getting hurt (and the potential for liability). Because I don’t care to be sued. So this lets me riff on three activities near and dear to me: Running, race organizing, and the law.

So let’s take a look at the adventure, and the two big risks that come with it. This is important, I think, because of the public perception that people can sue for anything. While they might be able to sue, that doesn’t mean they can sue with success.

First is the obvious; the running surface. Running on streets presents a challenge for even the best of runners, as one twig or pencil could cause a rolled foot and send someone sprawling. Pot holes. Gravel. Uneven roadbeds. Road kill. Now run that surface on unlit roads at night while you’re exhausted with cars whizzing by on rural roads. You don’t really need a light to get the picture.

The second risk is the vehicles. Run on the road’s shoulder, as we did for mile after mile, and you must contend with cars and trucks. And drunks. And sleepy drivers driving support vans in your own race on oft-times narrow roads. Some intersections you cross on your own. Some have police or volunteers.

Those are the big two risks in running for which liability could conceivably be imposed on others for a runner’s injury.

Now I’m going to focus on New York law, since that is where I’m admitted, but the basic concepts are likely to be the same elsewhere, even if there might be deviations in some of the details.

This is the basic principle:

“[B]y engaging in a sport or recreation 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.”

Now let’s look at a sample case:

In Conning v. Dietrich a triathlete fell off a bike during a training ride organized by a club, and was then hit by a car. The accident happened when the plaintiff was following a fellow cyclist and the shoulder narrowed, and there was a difference in elevation between the shoulder and the gravel area to the right of the shoulder. When the plaintiff saw another cyclist leave the shoulder and swerve onto the gravel surface, she followed. Then attempted to get her bicycle back onto the shoulder, at which point the front wheel of her bicycle caught the slight rise in the shoulder’s elevation, and she fell into the roadway where she was hit.

In Conning, the plaintiff claimed against the club was negligent in allowing her to ride on “a decrepit and narrow path.” And she sued the driver of the car for negligence. Different defendants, same results?

No. There were different results when the defendants asked for judgment before a trial had even occurred. If there are no factual issues, and the law is clearly on one side, a judge can take the case away from a jury on a motion for summary judgment.

So as to the claims against the club, the club can fairly claim that the plaintiff assumed the risk of the ride. First off, “[t]he risk of striking a hole and falling is an inherent risk of riding a bicycle on most outdoor surfaces.” In addition, “the risk of encountering ruts and bumps while riding a bicycle over a rough roadway … is so obvious … or should be to an experienced bicyclist … that, as a matter of law, plaintiff assumed any risk inherent in the activity.” The same would no doubt hold true for runners.

If you read the opinion, you can also see subtleties in how the court treats actual competition compared to non-competition (a training ride) and the effects of written waivers. Yeah, we lawyers do know how to complicate things, but the decision is instructive for people on how a court goes about tossing out a claim. Essentially, the claim is tossed out because the club did not take the plaintiff on “an unreasonably dangerous roadway surface,” and that she was “able to observe the roadway as she was riding on the shoulder. Also, despite observing the narrowing of the shoulder, she continued to ride. Plaintiff, did not, as she knew she could have, slowed down or stopped.” She assumed the risk of her participation.

By contrast, the court ruled that the claim against the driver had issues of fact for a jury to resolve as to whether he “used that level of ordinary care that a reasonably prudent person would have used under the same circumstances and if not, whether the subject accident was foreseeable.”

So those injured in a competition that take place on a roadway would likely find differing results depending on who they believe was at fault. Want to blame the organizers of the event? That will be tough to do if the risks were forseeable. Want to blame that drunk driver who clipped you while you ran on the shoulder? Well, the risks of road racing do not include drunks veering off the road.

I taped my calf for the third leg of the race.

One other risk: That of self-inflicted injury because you refused to stop despite being hurt. In this race, I managed to injure my hamstring in the first leg of the event, and then managed to injure my calf in the second leg due to a change in gait while I nursed the hammy. Could I have quit in order to save myself from further injury? The problem is that this is a team event and, last I checked, there is no “I” in team. So I taped up the hammy with first aid tape, and then taped the calf. Then put on the running tights to hold it all in place. And when I thought the calf needed even more support, I found some red duct tape to hold it together for the third leg.

So I got injured. And I blame myself.

We ran two teams this year: Fox Chase 1 and Fox Chase 2. We finished 47th and 50th, with an average pace of 7:30. I’m seated, second from right.

Elsewhere on the race (I’ll put up more links if I find good ones):

Reaching the Beach (Run It)

Scenes from HKAC Victory at RTB 2011 (Hello Kitty AC)

Reach the Beach (RACE acidotic)

August 31st, 2009

The Wife, The Tushy Bone and The Waterpark (Assumption of Risk? Or Not?)

My wife hurt her tushy bone this past week at a water park. Should she sue?

First off, the lede is not a joke. She was at Jungle Jim’s waterpark in Rehoboth Beach, Delaware. Their largest slide has a particularly sharp drop near the top, causing an injury to her coccyx severe enough to warrant a visit to the emergency room and a supply of Percocets. Whether it is broken or badly bruised didn’t seem important to the ER staff as there was no treatment for it except pain killers.

Two facts seemed particularly important, from the legal end:

First, she was told by someone at the first aide station (where they gave her Tylenol) that sometimes people wrench their back on that attraction; and

Second, no one took her name or filled out any kind of report.

So they have a ride that they know causes injuries and are failing to track the injuries. This means, of course, that if it is their policy not to take reports, and if they are ever sued for an injury and are asked about prior reports to see how dangerous the ride is, they can simply reply that they don’t have any. That’s called turning a blind eye to a problem. And the witnesses are gone.

But also lurking in the liability background is the doctrine of “assumption of risk.” In New York, where I practice, that means that “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. Participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of participation, but not to unassumed, concealed, or unreasonably increased risks.”

That language above comes from last week’s appellate decision in Farrell v Hochhauser, where a high school wrestler contracted herpes simplex I while participating in a wrestling match. The court tossed out the suit because the risk of infection in a sport with close bodily contact is known.

And in another recent New York appellate decision, the court tossed the suit of a skydiver that was injured. The lower court had permitted the matter of Nutley v. Sky Dive the Ranch to go forward, but a panel of the First Department reversed. This case was the subject of extended discussion and commentary, at John Hochfelder’s New York Injury Cases Blog. The court wrote:

Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport.

By contrast, an unusual Little League suit resulted in a $125,000 settlement after a kid was badly injured sliding into second. It sparked much comment at Overlawyered and an article in LawyersUSA Online where I was quoted on the subject. It seems apparent to me that the usual hurdles of the assumption of risk doctrine were overcome based on that case’s particular fact pattern and an issue with the bases that were being used.

So, returning to my wife’s tush, it would appear that (under New York law) this would be a particularly troublesome case to bring due to assumption of risk. Except for that part about Jungle Jim’s failing to track the injuries that take place on the attraction. The failure to track makes it impossible to determine if this attraction at Jungle Jim’s has more injuries than others.

Most people, I think, when going on a roller coaster or water park type ride, make the assumption that it is the fear of injury and death that provides the fun, and assume that actual injuries pertain mostly to those with cardiac conditions or pregnancy. There is also some jostling to be expected, and the odd bruise here and there.

But if the ride repeatedly causes injuries, is that something “commonly-appreciated” or a danger that is readily apparent from the sport or recreation? This could, conceivably, crack open the liability door, though that could take substantial work if records aren’t being kept.

And what is the law in Delaware where this event happened? While I assume it is similar to New York, I’m not a particularly litigious person, notwithstanding my career choice, so I’m not going to find out. I assume anyway that after a few weeks my wife will be fine. Even if the liability door was open, I would reject the case based on these injuries.

On a final note, when searching for tushy graphics to use on a blog, it is advisable to turn on the SafeSearch feature of Google.