There is a little debate going on in a cycling forum I frequent where some triathlete got hit by one of the support cars of the triathlon organizer. One of the drivers did not check to his side before making a turn. The participant suffered a broken noise, road rash, soft tissue injuries, a trashed $6000 bike, and wasn’t able to finish the triathlon. The guy paid an entry fee to participate and signed one of those general waiver forms saying that you promise not to sue the organizer, volunteers, or other participants no matter what.
So, my question is whether these waivers are actually applicable in all situations no matter the reason that led to the injury or loss. Here is a sample waiver form .
Whose negligence was it, and what form did it take? It might depend on whether the act or event in question could reasonably construed as forseeable - ie. the event organizer pulling a gun and shooting you as you cross the finish line = not forseeable.
There is no compeletly general rule on the issue. Jurisdicitions differ as to when and why they will not allow a liability waiver to be used to bar a lawsuit. However, more often than not, the waiver will be a bar.
To know the state of the law in your state, I recommend consulting an attorney who does personal injury cases. Usually, such consultations are free. That attorney would be best at knowing the ins and outs of the law in the state in question.
IANAL either, but I question whether, or not, the drivers’s action rises to the level of gross negligence. Now if the driver were drunk, or somesuch, it probably would. If gross negligence could be proven, then I think the waiver could be overcome, but you’d have to convince a judge of that.
The general consensus is that the driver of the vehicle was negligent because he failed to drive safely on an open road with lots of triathletes around him. The guy that got injured was on a bicycle and to the left of the car. This was on the race course. The driver of the car made a left turn without adequately checking his left side and ran into the injured triathlete.
The driver was a volunteer for the event so it was definitely forseeable that you might run into someone if you are not careful since there are so many people around. I don’t know all the details but it seems to be the negligence of the driver. I don’t know if it is gross negligence or just regular negligence. However, the event organizer acknowledged fault and the injured guy is trying to claim insurance through them.
That injured guy is in the states somewhere. I’m in Alberta, Canada.
I’m not a lawyer, but I think the question of foreseeability is, was it foreseeable for the person who got injured that the injury might occur? i.e., in a bicycling event, hitting a rock and crashing your bike would probably be a foreseeable possibility. Getting run over by one of the people who organized the event, well, probably less foreseeable.
If you sign a waiver, but something totally bizarre happens that injures you, then you’re less likely to have a judge throw your case out of court (or to have a jury laugh in your face, if it makes it to trial) than if it was something you should have expected, like hitting a rock and falling off your bike. “You hit a rock and broke your arm when you fell onto the street? Well, it’s a bike race. You knew that was a risk when you chose to enter the bike race.”
Having said that, we use waiver forms in my Taekwondo school. The form very clearly states that there is a risk of injury or death. We were always told that someone could (and probably would) sue us anyway at some point, but if we had the signed waiver, our defense would be much stronger because we could prove that we told them up front that they might get hurt.
But if the Taekwondo instructor isn’t paying attention when he pulls into work and drives through the front of the building and hits someone, I’d imagine that would be different.
I don’t know if the auto insurance would cover it but it would seem logical that it would. The guy that got injured is trying to claim compensation through the car insurance of the organizers.
At Walloon, I don’t know this guy but his accident happened somewhere in the states that is warm right now. Just assume Florida if you want a geographic location.
I’m more interested in legal precedents where people have tried to sue or have successfully sued so that I can make sense if waiver forms are all they are made out to be.
P.S. Notice in the second column of the waiver form, linked above, that the participant is releasing USA Cycling, Inc. and its employees and volunteers, of “THE RELEASEES’ OWN NEGLIGENCE” and “the negligence of others”.
But without knowing the location of the accident, it’s not possible to answer your question, since the law of negligence and the effect of waivers can vary from jurisidiction to jurisidiction. Some jurisdictions distinguish between negligence and gross negligence; others don’t make that distinction. Some jurisdictions are more sympathetic to waivers of liablity; others are more willing to set them aside. Some jurisdictions distinguish between volunteer groups and organizations which pay their employees.
In federations such as Canada and the United States, where negligence and waiver law are generally provincial and state jurisdictions, there is no clear answer to the OP question. You need to know where it happened (and if there was a choice of law clause in the waiver, which may happen in an event that attracts a lot of people from around the country or internationally.)
So as the thread title suggests, in many jurisdictions you can sue for gross negligence despite an exculpatory clause.
Does an exculpatory clause effectively bar claims against those who aren’t parties to the contract?
Answer: Sometimes. It usually boils down to the legal tests for whether the person sued was a third-party beneficiary of the contract, and if so, whether the person complied with the requirements for enforcement of a contractual provision by a third-party beneficiary.
Does the conduct described constitute gross negligence or more?
Answer: Probably not. But we don’t have enough information to be certain. Therefore, question 2 is probably the key issue.
I asked this question (in a different form) two years ago and got a surprising response from Random, one of our resident legal dudes. He made a tantalizing mention of a followup post that would clarify the details, but apparently has not quite gotten around to making that post.
