Slowtwitch Features

(PUBLISHER'S NOTE: This article is the first in a trilogy on the legal liability associated with our sport. This one is on the waiver, and is written by Greg Hitchcock, who also writes most of our articles on running. Besides being a 13-and-change 5000 meter runner and a sub-2:20 marathoner, he's also an attorney specializing in sports-related type stuff. We're lucky to have him around. Following this will be a couple of additional articles on the specific insurance issues regarding triathlon in the U.S., and how our federation is handling them.

On waivers

Nearly every race requires participants to sign a waiver of liability to the race director, sponsors and anyone else having something to do with the event as part of the race application. Some participants think that these waivers have no legal effect in the event of an actual injury. This is a common mistake because in some situations, such as in a hospitalization, a similar type of waiver of liability will rarely be upheld. On the other hand, some people just assume that the waivers are professionally done and will be effective. This too is not always true.

I will refer to "waiver" as the general term for the part of the race application that requires the participant to waive or release any claim against the organizers, contractors and sponsors for their part in injuring a participant during the race. These provisions often include language that indicates the participant understands the risks involved and that the participant is assuming those risks and is fit to undertake the event.

The effectiveness of waivers depends on three factors: 1) how well the waiver is written; 2) what jurisdiction the race is in; and 3) the nature of the wrongful act by the race director. However, it can generally be said that in most places, for most injuries, that most waivers will be effective. A law journal article in 1997 counted 36 of the 50 states reporting decisions that upheld participant waivers for various recreational activities. (To be reported, or widely published, state court decisions generally have to go to appeal after trial court. Most cases end at the trial court level are not "reported," and thus are not easily found and have little value in predicting future legal outcomes.)

However, I have seen waiver forms currently used that probably would not stand up in at least some jurisdictions, and others that could use improvement. This is true not only in small, local races, but in larger races as well. [Note to race directors or injured participants: I am not looking for any business. In fact, as an "in-house" lawyer I cannot provide advice to outside businesses and individuals.] It is common to see that one race director prints an impressive-looking waiver form, and then other race directors copy it, resulting in a widespread form that may or may not be sufficient.

It is surprising that event insurers for national federations for running, swimming, bicycling and triathlon do not provide mandated waiver forms. (Insurance companies for other recreational activities such as scuba diving do mandate a particular waiver form.) These governing bodies provide most events with their insurance and could provide the maximum protection for the industry by requiring a well-crafted waiver.

What is Being Waived?

In the absence of a signed waiver, the law in most states is that the participant assumes the ordinary risks of doing the activity. For example, since it is common for accidents to occur in bike races, this is an assumed risk of the rider. However, if the race director does a poor job of keeping cars off of the course, and a car causes a bike accident, the director might be liable for negligence if there were no waiver.

So the waiver shifts the loss for acts of negligence. Negligence is behavior that is below the standard of care a reasonable person would take in like circumstances. It is an objective standard, but it varies depending on the circumstances. For example, a big race might be held to a higher standard than a small race. But the expectations for the big race would be based on what one would reasonably expect from such a race—not the expectations of the injured party. Similarly, a race director usually cannot point to an injured party’s experience to escape liability (though courts get this muddled); rather, it is the experience of the typical race participant that will determine what is reasonable care on the part of the race director.

While the race director can have participants waive their rights to recover for negligence, the courts have not permitted waivers for gross negligence or recklessness. Gross negligence is such severe carelessness that it evidences a disregard for the safety of others and amounts almost to an intentional act. Back to the bike example: If the race director knew the course was badly marked and knew that cars were endangering riders and did not take any action to rectify the situation, though he reasonably could have, an injury caused by such a situation might amount to gross negligence by the race director. This is indeed a high standard for an injured party to meet in proving liability.

Why Waivers Matter to Everyone

As a result, waivers can greatly reduce the costs of litigation. If the injured party does not allege gross negligence by the race director (or his agents), then the race director can usually get the legal action eliminated without going to trial by simply offering the signed waiver on summary judgment.

Waivers are important to everyone, even the 99 percent of participants who never have an injury, because the effectiveness of the waivers makes the events possible. If race directors do not have this protection, there will be fewer and more costly races. While the one injured party will understandably want to reduce the effectiveness of the waiver, it is generally in the interests of everyone else that the waiver be upheld for acts of negligence.

It is unclear why a third-party race sponsor would be liable for a race organizer’s negligence,* but sponsors get sued and rely on the waivers to avoid liability. It would make sense for sponsors to require additional language for the participant to acknowledge that the race sponsors have nothing to do with the operation of the event and the participant agrees not to sue the sponsors for any injuries sustained in the event. This should make the sponsors’ exit from any lawsuit as painless as possible.

Similarly, some waivers include a release for the governmental entity where the event takes place. But beyond injuries under the government’s control (e.g., condition of the road), it is unclear why a government which merely issues a permit available to anyone to use the public ways should be liable for a race director’s liability. And again, while many race directors include such entities in their waiver, many governmental entities do not require waiver language to issue a road use permit.

Elements of an Effective Waiver

While the elements of an effective waiver vary slightly from state to state, the key thing courts look for is a clear and unambiguous agreement that the participant is waiving his rights to recover for negligent actions. Waivers reflect the intersection of personal injury law with contract law. The courts are tough (some more than others) in reviewing the contract language to ensure that participants have willingly given up their rights to be protected from personal injury caused by negligence.

Waivers have been thrown out for having too much "legalese" and for being printed too small. These problems make it difficult for the average person to understand the gravity of the rights being relinquished.

Waivers have been voided for not specifically including "negligent" acts, though other courts have found that that magic word in not necessary if the event and acts are described adequately. One waiver that covered several events was voided because it did not adequately define the "event" or location, but similar waivers have been upheld in another jurisdiction.

One waiver did not have broad enough language and while the accident itself was covered, the alleged negligent assistance after the accident was not covered by the waiver. But in another state, a general waiver was held to cover post-accident assistance.

Waivers have been voided for not describing the nature of the risks in enough detail, though some states are not as demanding on this point as others. However, if the risks are spelled out in too great of detail, the waiver can be voided for being too legal.

Aren’t Waivers Against the Law?

Several arguments have been tried to have otherwise valid waivers declared invalid as against public policy. The "take it or leave it" nature of the waivers has been attacked and upheld in every case I have seen. This argument is that the race director is in an unfair bargaining position and can demand the participant sign the agreement. However, the Florida court in Banfield v. Louis rejected this argument when a triathlete was injured on her bike when a car hit her in a poorly marked area. The Banfield court followed the uniform rule of upholding waivers for recreational activity, finding participation in an athletic event is discretionary and not essential, meaning that there is no reason to void a contract entered into freely.

In another case, Barbara Buchan, who was competing for a spot on the national road cycling team, came close to making this an effective argument, winning a million-dollar verdict at trial but losing on appeal. She was seriously injured when the federation allowed a novice rider (who had caused an accident in an earlier race) into Buchan’s elite race and the novice caused Buchan’s injuries. Buchan’s claim was that because the national bicycling federation held a monopoly on participation on national teams, it was in an unfair bargaining position and that the waiver for negligence should be voided. While two of the three appeal court judges in California did not find this argument persuasive (holding that even at the elite level, participation was not an essential activity), the other judge wrote a strong dissenting opinion agreeing with Buchan. It is likely that some other state courts will adopt this view for elite athletes. Essentially, elite athletes can argue that entering the event is a commercial necessity, not a recreational activity, and perhaps shift the risk of negligence back to the race director.

A runner who suffered heat prostration injuries at the Peachtree Road Race in Atlanta argued that such a big race had a public duty to provide for the safety of race entrants. But the court was not persuaded, noting that the participant had written warnings of the nature of the race and had expressly assumed the risk of participating in the event.

Others have argued that by letting race directors get away with negligence, their general standard of care is reduced, causing harm to the public. The courts have found that the public good of freedom of contract (i.e., letting people engage in conduct as they please) takes precedent over any harm to the public from recreational activities.

The one argument that nearly always overturns a waiver is contractual incompetence. Children compete in running, swimming, cycling and multi-sport, and parents are asked to sign waivers. Interestingly, parents cannot sign away the child’s right in most jurisdictions. So the waiver only limits the parent’s right to sue for damages, it does not limit the child’s. And since children are not competent to waive their own rights, it is impossible to waive any rights with respect to children in most situations.

A few state legislatures have confused matters by enacting laws that alter the court-developed law. For example, Hawaii enacted a law that was intended to provide additional protection for recreational sport providers but instead appears to prevent them from requiring a waiver that releases liability for negligent acts (and it is not clear if this applies to sporting events or events run by nonprofits). New York similarly precludes certain recreational providers from releasing themselves from negligent acts—and this may not apply to triathlon races, but does apply to swimming pools.

Liability of Participants and Volunteers

A participant may become liable to another participant for injury when their activity goes beyond mere negligence to gross negligence or reckless disregard for the safety of others. Again, this is a high standard, and the reported cases usually involve a sport like softball with an overzealous player going out of his way and breaking the rules to injure another player. An example for triathlon might be if a runner were to purposefully kick the back of another runner’s shoes, or a cyclist were to weave in front of others to harass the other riders.

Race volunteers who are negligent also rely on the waiver of liability, so they might be interested in whether the race has a good waiver. Volunteers also have some added protection under the federal Volunteer Protection Act of 1997. This act protects volunteers from claims for negligence (but not gross negligence) in certain cases. In racing events, the act applies only to volunteers of races put on by nonprofit organizations and governmental entities. It does not apply to races put on by for-profit race directors, and it is unclear if having a charitable beneficiary changes this. States may also have their own volunteer protection acts.

Conclusion

Most of us (including me) just sign these waiver forms with little more than a glance. We treat the waivers lightly because the risk of injury is slight and the benefits of the activity are great. But creating valid waivers should be a priority for race directors and the national federations. Waivers of liability matter greatly to the industry by keeping participant fees lower, making sponsorships possible and allowing local governments to license use of their roadways. In other words, in this age of easy litigation, there would be greatly diminished race opportunities if not for the validity of waivers of liability. And that is something we can all care about.

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*Race sponsors are sued because they might receive a financial benefit—publicity—for being involved in the event. Yet so does a top athlete. And just as there is no reason to sue an athlete who financially benefits from the race, there should be no reason to sue a sponsor who has nothing to do with the actual operation of the event. It would be equivalent to suing a company that advertises on the side of a bus for an accident caused by the bus company, or suing a magazine advertiser for libel published in a magazine. However, race sponsors are usually one of the few "deep pockets" around from which recovery is possible, which is why they will inevitably be sued if something happens at an event.

Disclaimer of Liability

And speaking of disclaimers. This article is only a general legal discussion of event liability and waivers from such liability. It is not to be taken as legal advice, and people who have specific questions need to contact a competent attorney for advice. The law changes and the law varies from state to state. In no event will the author, editor or publisher be liable for any damages resulting from the use of this material.

The next article in this series is on USAT's approach to its waiver.