By Doyice Cotten
In 2013, Tommy Lynam (age 13), was riding a motocross bicycle at Blue Diamond Motocross near New Castle. While riding, Tommy rode off a jump, made a hard landing, and was unable to stop in time before colliding with a large metal shipping container. Lynam sued alleging negligence and recklessness (Lynam v. Blue Diamond Motocross LLC, 2016).
Lynam’s father had signed a waiver entitled “Parental Consent, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement” which stated that Plaintiffs understood the “risks and dangers of serious bodily injury.” The waiver released Blue Diamond from injuries resulting from its negligence and from plaintiff’s negligence. In addition, Tommy also signed an agreement, titled “Minor’s Assumption of the Risk Acknowledgment.”
Both parties were in agreement that the waiver protected Blue Diamond from liability for negligence based on the Delaware Supreme Court ruling regarding parental waivers (News Flash: Parental Waiver Enforced In Delaware). The issue was whether the waiver covered recklessness. The waiver provided:
I consent to the Minor’s participation in the Event(s) and/or entry into restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.
- I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s) . . . all for the purposes herein referred to as “Releasees,” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED . . . BY THE NEGLIGENCEOF THE “RELEASEES” OR OTHERWISE.
The court stated that it was adopting the Prosser and Keeton interpretation that while waivers can insulate defendants from liability for negligent conduct, it does not bar claims of “more extreme forms of negligence such as reckless conduct. It went on to describe recklessness as as an “I don’t care” attitude amounting to unreasonable conscious disregard of a known risk.
Plaintiff’s argument that the conduct was reckless included 1) an allegation that the design of the track was reckless in that it was intentionally constructed next to the pre-existing metal container, thus requiring riders to land a jump and immediately decelerate in order to execute a 90 degree turn and 2) the fact that defendants were aware of previous collisions with the container and that their ignoring these incidents amounts to reckless conduct.
The court held that, based on the waiver, Blue Diamond was not liable for negligence. It also ruled that the waiver did not protect Blue Diamond against reckless conduct. There was sufficient evidence that a jury might deem the conduct reckless, so the court denied Blue Diamonds motion for summary judgment. A jury might deem the act reckless, thereby making Blue Diamond liable.