7/18/2018
Taking It to the Extreme

Taking It to the Extreme

In claims for adventure sports, check the statutes and waivers

By Jeanine D. Clark , Simon Keshishian

The vast majority of participants in so-called extreme and adventure sports enjoy the activities without incident. However, there are certain inherent risks in skiing, rock climbing, skydiving, scuba diving, and even participating in amusement park activities such as trampolines, roller coasters, and water parks.

If you have ever done any of these activities, then you have likely seen some type of disclaimer or waiver printed on the back of your admission ticket, or have otherwise been expressly asked to sign a waiver as a condition of participating in the activity. Since you are reading this article, you are probably involved in claims or litigation and are no doubt familiar with the doctrine of assumption of the risk. So what is there to talk about? As it turns out, quite a bit.

While disclaimers, waivers, and the doctrine of assumption of the risk can serve as deterrents to many claims for minor injuries, a claim or lawsuit is still likely to follow when there is a death or catastrophic injury. It then falls upon counsel, the insurance or claims professional, and the company being vilified not only to defend, but also to manage damage control for the facility and, to a lesser degree, for the activity or sport as a whole.

In addition, depending on the facts of the loss and the optics, companies may find themselves defending their reputations and goodwill in the social media arena, where conclusions are often reached by bloggers on specious grounds.

Risk Awareness

When something goes wrong, potential targets include the facility or operator itself, such as a ski resort, a guide service, or an amusement park; the event sponsor or promoter; and fellow participants. Often, ski and snowboard accidents involve other skiers or riders who are alleged to have been acting negligently or recklessly. In rock climbing, participants are often roped together, and if one participant loses his footing, then he risks taking down several others or even the entire group. If the activity is part of a tour organized by a tour operator, that tour operator may also face claims and possibly liability for derivative negligence (such as negligent training).

What is interesting is that, in some jurisdictions, there are specific laws that can protect owners and developers when accidents occur. For example, the Colorado ski industry is protected broadly by state law and has escaped liability for catastrophic claims over the years.

In addition, jurisdictions vary slightly with respect to their application of the assumption of the risk doctrine. Many states follow the Restatement (Second) of Torts §496B, which provides, in pertinent part:

A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.

§496C, with regard to applied assumption of risk, further provides, in pertinent part:

A plaintiff who fully understands a risk of harm to himself or his things caused by the defendant’s conduct or by the condition of the defendant’s land or chattels, and who nevertheless voluntarily chooses to enter or remain, or permit his things to enter or remain within the area of that risk, under circumstances that manifest his willingness to accept it, is not entitled to recover for harm within that risk.

And §496D holds that, in order to assume a risk, a plaintiff must know of the existence of the risk and appreciate its unreasonable character.

While, in certain contexts, the appreciation for the nature of the risk might arguably be inferred by the participation—and many of these activities can be perfectly safe and even tame—it is always best to have a written waiver or disclaimer.

Waiver Disclaimers

With respect to skiing and other active sports, the facility has a better chance of a court finding that the warning and waiver was binding on the participant when a separate written waiver was executed, such as for a lesson, equipment rental, or season pass. Season pass waiver forms are an excellent opportunity for a facility, whether a ski resort or a local water park, to beef up its waivers, warnings, and other liability protection measures. It requires an affirmative signature from the participant or the participant’s guardian. There are also opportunities to require initials at key provisions, such as waiver of lawsuit, risk of death or serious bodily injury, and arbitration provisions.

Participants who are likely to purchase season passes are usually sophisticated users who are aware not only of the risks, but also safety procedures and protocols. They are also, as veteran participants, much less likely to balk at a comprehensive waiver.

Waivers requiring detailed emergency contact information can also be useful. Filling out a waiver that requests emergency contact information in such a way as to all but ask where the body should be shipped makes quite an impression and, should it be reviewed by a court at a later date, would support a finding that the participant knowingly and voluntarily proceeded in the face of the known risk.

As an example, the back of a Colorado-issued ski season pass includes four paragraphs, most of which is written in small font, but which begins:

WARNING

Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing…and may not recover from any ski area operator from any injury resulting from any of the inherent dangers and risks of skiing….

This or similar language would also appear in readable print on a waiver to be signed by the pass holder.

Policy in Practice

State statutes are also useful tools in defending actions. Many states have statutes that specifically address the responsibilities, liabilities, and, in some instances, limitations on liability with respect to skiing, other sporting activities, and amusement parks. New Jersey statute §5:13-3, for example, pertains to amusements and public exhibitions, and has been held to apply to activities such as skydiving facilities. Skiers and snowboarders are governed by N.J.S.A. §5:13-1 et seq. It applies not only to claims made between skiers, but also against a facility.

But New Jersey, as well as some other jurisdictions, also makes a distinction between a party injured on the slopes and an injury resulting from a lift or tramway. N.J.S.A. §5:13-3(e) pertains to tramway safety, and Pietruska v. Craigmeur Ski Area supports the distinction of injuries resulting from the negligent operation of a lift or tramway.

Where a statutory scheme is involved, whether the claimant must meet higher standards or whether an applicable waiver applies will depend upon the court’s interpretation of whether the injury falls within either the inherent or statutory risks.

In an unusual case—Waschle v. Winter Sports Inc., in the District Court for Montana—it was determined that because tree wells were not listed at the time of the accident as an inherent risk of skiing or riding under the state’s statute, it was not deemed to be an inherent risk and thus the ski resort was not entitled to summary judgment.

In Brigance v. Vail Summit Resorts Inc., the Tenth Circuit Court of Appeals in 2018 rejected the argument that the express language of a ski school waiver and the pre-printed language on a lift ticket waiver did not control because plaintiff was alighting from a lift when she was injured. In the case, the plaintiff had signed a specific ski school waiver in addition to having been issued a ticket that included a pre-printed waiver on the back. The release and waiver she signed as part of the ski school included language broader than either Colorado’s statute or the pre-printed ticket waiver. The release and waiver stated:

I expressly acknowledge and assume all additional risks and dangers that may result in…physical injury and/or death above and beyond the inherent dangers and risks of the activity, including but not limited to….

The court looked at whether the parties’ intent was expressed clearly and unambiguously. The court spent a great deal of time reviewing the specific language of the waivers and the conspicuous nature of the language, including larger or bold print.

This shows that while Colorado has one of the most claimant favorable statutory schemes in the nation, there remain limits on an injured party’s ability to pursue an action.

However, in another case that is contrary to the Brigance holding, the court in Bayer v. Crested Butte Mt. Resort Inc. found that the injury at issue fell under the Passenger Tramway Safety Act of Colorado as distinguished from the statute applying to skiing. The lift operator was held to the highest standard, with the reasoning that when people relinquish themselves to the control of the lift, they have no opportunity to avoid any negligence or peril that might befall them. This, however, is an older case from 1998, and it is not clear whether courts would continue to reach this conclusion.

First Response

When first encountering a claim involving an adventure or active sport, the first step should be to check the state statutes. Next, the focus should shift to the comprehensive (hopefully) nature of the waivers. For example, if you have a plaintiff claiming injury or death as a result of a scuba diving accident, it is unlikely that the claimant’s foray into scuba diving was his first experience with that sport. As the sufficiency of the language in the waiver will be challenged—both from the perspective of a contract of adhesion and the sufficiency of the warning—the claimant’s past participation in the activity, past waivers, and general knowledge regarding the inherent risks of the sport may help to educate the jury that, although an unfortunate accident occurred, the claimant was aware of and understood the hazards of the sport.

Even if the participant had little prior experience in the sport, it is likely that the claimant had engaged in other active sports or ventures such that the same type of information may be adduced and an understanding of the risk reasonably inferred.

When you are defending a tortfeasor who is a co-participant, you may have the worst of all possible situations. Your client may not be entitled to at least some of the benefits of a statutory scheme and none of the benefits of the waiver/release. However, your client may nevertheless have common-law negligence liability or even negligence exposure under a state statute. Your client’s ability to pursue the organizer or facility may likewise be limited under the same statutory scheme or waiver that limits the plaintiff’s claims.

If you are defending an amusement park, facility, or activity training school, not only do you have the ordinary concerns of defending the client, or, if appropriate, achieving a fair or favorable settlement result, but also you may be faced with a public relations situation. There may be publicity issues surrounding the specific event, the sport or facility, or even an associated criminal case.

During the pendency of the litigation, it is difficult to control public access and publicity, particularly in states with electronic filing or in the federal court system. Depending upon the merits or exposure, early resolution prior to the filing of a lawsuit may provide some level of damage control. Certainly, confidentiality agreements in connection with any resolution are favored. There will, however, be cases in which the nature of the injury is so severe and the liability defense fairly strong that trial is necessary.

Another trend to watch for is subsequent negligence claims that may not be relinquished knowingly or addressed in the original waiver, such as for “negligent rescue.” An example of this might be where a spectator assumes the risk of getting a concussion while skiing, but takes the position in a later claim that he did not forego his right to make a claim for the ski patrol’s negligent failure to properly administer First Aid or timely transfer him to an ambulance. Similarly a lay person who undertakes a duty to render aid and does so negligently may face liability subject to a state’s Good Samaritan statute.



Jeanine D. Clark, Esq., is a partner with CLM Member Firm Margolis Edelstein. She can be reached at jclark@margolisedelstein.com, www.margolisedelstein.com.

Simon Keshishian is senior director of risk management at Red Bull. He may be reached at simon.keshishian@redbull.com.

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