By Doyice Cotten
Elizabeth Dudros was injured when she struck a wall located only five feet from the roller derby track during a non-contact drill. She had to swerve to avoid a pile-up causing her to strike the wall (Budros v. Womens’ Flat Track Roller Derby Association, 2017 Mich. App. LEXIS 1525).
Budros had purchased WFTDA insurance before skating; the policy included a waiver of liability. The Traverse City Roller Derby (TCRD) athletic director showed Budros around the track prior to the drill. The AD claimed she pointed out the wall and other potential hazards; Budros denied she pointed out the wall, which at five feet, did not meet WFTDA safety standards.
Budros filed a complaint alleging both WFTDA and TCRD were guilty of ordinary negligence and gross negligence. The trial court granted summary judgment in favor of the two organizations and the plaintiff appealed.
Issue of Ordinary Negligence
The court summarized Michigan waiver law making the following points:
- A valid waiver or release of liability defeats an ordinary negligence claim.
- The validity of a waiver depends upon the intent of the two parties.
- A valid waiver must be “fairly and knowingly made.” A waiver is invalid if:
- The signing party was dazed or shocked,
- The relying party misrepresents its contents, or
- If the circumstances reflect fraud.
The court agreed with the trial court that the language of the waiver included in the WFTDA insurance purchase agreement was clear and extinguished Budros’s ordinary negligence claims.
Budros made 3 arguments in claiming the waiver was invalid.
First, Budros pointed to the fact that the waiver was part of an insurance purchase agreement and not a separate document clearly labeled a release. The court countered that the page showing Budros’s electronic signature bears the caption “2014 Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement.” It pointed out that the waiver used both ordinary and bold print informing Budros of the risks of the activity and clearly stated that she assumed the risks of her own negligence. Additionally, pertinent waiver language included that Budros shall:
HEREBY RELEASE, DISCHARGE, AND COVENANT NOT TO SUE the sanctioning organization(s), their administrators, directors, agents, officers, members, volunteers, and employees, other participants, officials, rescue personnel, sponsors, advertisers, owners and lessees of Premises on which the Activity is conducted, (each of the forgoing shall be considered one of the RELEASEES herein) FROM ALL LIABILITY, CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON MY ACCOUNT CAUSED, OR ALLEGED TO BE CAUSED, IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, INCLUDING NEGLIGENT RESCUE OPERATIONS ….
Next, Budros argued that the waiver was invalid because it was ambiguous since it did not specifically name the WFTDA or the TRCD as releasees. The court stated that a waiver need not name each party because the waiver’s general reference to all participants was sufficient.
Finally, Budros contended “that defendants misrepresented the nature of the document by instructing her to purchase insurance without advising her that the insurance purchase agreement contained a waiver.” Even if so, the court said she did not claim that defendants attempted to deceive her about the agreement’s contents, conceal its contents, or prevent her from reading its contents before signing. In fact, she did not claim she would have declined to participate in the drill if she had been aware of the form’s contents. In addition, the court emphasized that failure to read an agreement does not render it invalid and unenforceable.
For these reasons, the court upheld the lower court ruling that the waiver protected the defendants from liability for ordinary negligence.
Issue of Gross Negligence
In Michigan, as in most states, pre-injury liability waivers do not protect providers from liability for gross negligence. The general public usually has a fairly accurate conception of what constitutes ordinary negligence; however, the public’s conception of what constitutes gross negligence is generally not very accurate. Their conception is often that gross negligence is “just a little beyond” ordinary negligence. This is not accurate.
The court tried to explain what factors are necessary to constitute gross negligence. It stated that in order to avoid summary judgment in favor of the defendants on her gross negligence claims, Budros had to show that the “defendants acted so recklessly that they demonstrated ‘a substantial lack of concern for whether’ she suffered an injury.”
The court explained that if was true that the AD did not warn her about the closeness of the wall, Budros still had to have shown a reckless disregard for her safety. Defendants admitted that the wall was too close to the track, but the court pointed out that that alone does not comprise gross negligence. Further, the court noted that it was not possible to move the wall because of the size of the building; hence TCRD had taken other measures to mitigate the risk: 1) they taped stripes on the floor where the outside referee lane was narrower by the wall; 2) they warned skaters about the wall; and 3) they had skaters shout “wall” to warn other skaters to avoid contact when approaching the area. These measures alone indicated the defendants did not act with “reckless disregard” for the safety of the participants.
The court affirmed the trial court’s summary dismissal of Budros’s gross negligence claims because the evidence does not raise a factual question on whether defendants disregarded Budros’s safety.
Since waivers are so effective in protecting ordinary negligent acts, plaintiffs seem to be claiming gross negligence more frequently than in the past. From a risk management standpoint, it is important for service providers to take strong, visible steps that will 1)help protect against injury to the participant and 2) help to provide evidence of concern for participant safety. Note: The definition of gross negligence varies from state to state, but it is always advisable to be able to provide evidence of concern for participant safety.
Photo Credit: Thanks to Floyd King at Flickr.