by Doyice Cotten

Heather Goss elected to participate in a multi-day cycling race put on by two inexperienced groups (GCSC and CWRU, a student led cycling club). The race was on a closed-loop and was designed by mostly inexperienced members of the two organizations. Prior to the race, Goss signed two waivers the said essentially the same thing. One of the documents follows:

 I acknowledge that by signing this document, I am assuming risks, agreeing to indemnify, not to sue and release from liability the organizer of this event, USA Cycling, Inc. * * * and their respective agents, insurers, employees, volunteers, members, clubs, officials, sponsors, event directors, local associations, and affiliates (collectively “Releasees”), and that I am giving up substantial legal rights. This release is a contract with legal and binding consequences and it applies to all races and activities entered at the event, regardless whether or not listed above. I have read it carefully before signing and I understand what it means and what I am agreeing to by signing.

I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THIS EVENT * * * and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation: * * * the dangers of collision with pedestrians, vehicles, or other riders, and fixed and moving objects; the dangers arising from surface hazards, including pot holes, equipment failure, inadequate safety equipment, * * * THE RELEASEES’ OWN NEGLIGENCE, the negligence of others and weather conditions; and the possibility of serious physical and/or mental trauma or injury, or death associated with the event.

* * * I HEARBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIDY AND NOT SUE the Releasees * * * FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE TO THE MAXIMUM EXTENT PERMITTED BY LAW, which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event[.]

* * *

I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert a claim contrary to what I have agreed to in this contract, the claiming party shall be liable for the expenses (including legal fees) incurred by the Releasees in defending the claims.

 The Incident and Claim

Goss actually participated in two races on the same day. On the final lap of the second race, a cyclist in front of Goss fell and caused many cyclists to lose control and crash. Goss suffer serious injuries as a result. Goss filed a civil complaint alleging negligence of the organizations.  She claimed they breached their duty 1) to exercise ordinary and reasonable care for the safety of Goss; 2) to maintain the course in a reasonably safe condition; 3) to give warning of latent or concealed perils thereon, of which [they] knew or should have known; and 4) not to expose such persons to unreasonable or foreseeable risk of severe bodily harm and injury.” She asserted that the course design did not conform to USAC safety standards – leaving an insufficient distance from the final corner to the finish area.

Summary Judgment Motions

The USAC moved for summary judgment based on the waiver which released the organization from liability for negligence.

Goss also filed a motion for a summary judgment arguing that the language was so general and ambiguous, that reasonable minds could conclude that race course safety was not in the contemplation of the parties. She claimed that participants “could not have comprehended the student planners’ lack of training and experience in race-course safety,” or that “the actual race-course safety would be so far beneath USAC’s safety standards.”  Her expert witness testified:

Based on my 40 plus years of cycling experience, both as a bike racer, recreational cyclist and bicycle safety expert, it is my opinion the defendants’ conduct was below the acceptable standard of *604 care required for safe race-course design and rider safety resulting in dangerous conditions not commonly associated with ordinary risks involved in the sport of cycling. The deviations from the standard of care were the proximate cause of Ms. Goss’s crash and injuries.

Trial Court Ruling

The trial court granted summary judgment in favor of the defendants based on the valid and binding waiver. Goss then appealed.

Appellate Court Issues

Goss, in her appeal, claimed the trial court made two errors: 1) it erred in finding that negligence as to race course safety and design was within the contemplation of the parties; and 2) that it erred in not finding the waiver to be “too ambiguous or general to effectively waive the negligent conduct of the appellees.”

The court stated that for a waiver or an express assumption of risk “to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence.” Hence, to be effective, it must “state a clear and unambiguous intent to release the party from liability for its negligence.” Thus, for a clear acceptance to be shown,  “an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence.”  It went on to say that waivers are not generally favored and must be narrowly construed; however, Ohio courts routinely enforce clear and unambiguous waivers. It said that the pivotal inquiry is whether it shows intent for the proprietor to be relieved from liability for his own negligence.

In her appeal, Goss argues that the waiver was ambiguous and general because it did not inform signers that the race planners were students with no training, knowledge or experience in race couuse design and safety. Further, she argues that signers had no way of knowing that the planners would ignore the recommendations of USAC. Hence, she argues that reasonable minds could differ as to whether the unsafe design of the racecourse by uneducated, untrained and inexperienced students was within the contemplation of the parties.

Reasoning of the Court

They point out that Goss did not contend that the parties engaged in willful or wanton conduct. To the contrary, “the Event Release directly contemplates the appellees’ own negligence and required Goss to acknowledge that she agreed “to waive, release, discharge, hold harmless, and promise to indemnify and not to sue” the appellees for damages arising from said negligence.”

The court noted that the language of the waiver included the words “release” and “negligence.” The court stressed that

Goss released the event sponsors and organizers from all claims arising from their own negligence to the maximum extent permitted by law, including any and all damages that may be sustained by Goss directly or indirectly in connection with, or arising out of, her participation in the cycling event. … .” By signing the Event Release, Goss made the conscious choice to accept that she “fully assume[d] the risks associated with such participation,” including (1) the dangers of collisions with other riders; (2) the dangers arising from surface hazards, equipment failure, inadequate safety equipment, or the releasees’ own negligence; and (3) the possibility of a serious physical injury. … it is clear that the appellees were to be relieved from liability for any negligence claims relating to their organization of the cycling event, including pertinent hazards and the design of the racecourse.

The court then overruled Goss’s first assignment of error in favor of the defendants.

Public Policy

Regarding the second error alleged by Goss, that the waiver was too broad and ambiguous to be enforceable as a matter of public policy. She argued waivers do little to encourage owners to keep their premises reasonably safe and forces the public to bear the cost of injuries caused by provider negligence. The court held that gaining protection from negligence liability from waivers is not against public policy in Ohio even though they are not favored, thus waivers will be enforced unless the language is against public policy concerns, unconscionable, or ambiguous.

The court concluded with the comment:

… we find no basis to adopt a position that would effectively overturn the well-established position of this court that “a participant in a recreational activity is free to contract with the proprietor of such activity as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor except when caused by wanton or wilful misconduct.

The court overruled Goss’s second assignment of error and affirmed the ruling of the trial court.

Risk Management Takeaway

Perhaps the organizations dodged the bullet here. There was definite negligence, perhaps even gross negligence or willful and wanton action. But they had a strong waiver that protected them in this case. I would wager that they did not copy the waiver from a book, friend, or the internet.  Maybe, they learned that it is better if qualified people are involved in management.

 

Photo Credit: Thanks to DancingonthePedals.net   via Flickr.