Legal question: injury vs. death

Factual Questions
1

This came up in discussion of what was claimed to be an actual incident (in Texas, if that matters) several years ago. It was some sort of amateur road race or rally, in which two cars collided, resulting in the death of one driver and minor injuries to the other.

All participants had signed a waiver absolving the race organizers of liability for any and all injuries that might be suffered during the event. Yet the organizers were nonetheless sued by relatives of the driver who was killed, on the basis that the waiver covered injuries, but not death. (The person telling the tale did not know what was the result of this suit.)

My question to Dopers: Can a death that - at least in a medical sense - clearly resulted from injuries be legally regarded as not covered by a waiver that mentioned injuries only?

2

Under UK law, the simplified common law position is that parties can indeed include exemption clauses in contract exempting them from liability for personal injury or liability from their own negligence. However these types of exemption clauses are governed very strictly: Lord Denning said they are “so wide and so destructive of rights that the court should not rule any man bound by it unless it has been drawn to his attention in the most explicit way”. It has to be made abundantly clear to the person signing it what they’re signing for (it can’t just be in the fine print somewhere). Furthermore, crucially, the wording has to be clear and wide enough in scope. If you want to exempt yourself from responsibility for your negligence that has to be made explicit; usually the court will require the word “negligence” itself to have been used. Same goes for personal injury. There is a heavy emphasis placed on whether the terms used were “wide enough” in scope to cover certain situations, and the benefit of the doubt cuts against the party claiming exemption.

Now you’re talking about Texan law, which could be wildly different. But I wouldn’t be surprised if the same principle applies: if the contract only mentions exemption from liability for “personal injury”, its terms might not be deemed wide enough to cover death. The courts - in the UK at least - are very strict on this issue, for understandable reasons.

3

I have often been told that such waivers are actually meaningless, as you can’t “sign away” such rights.
I was briefly a part of an organization where people gathered to fight with lightly padded wooden swords while wearing an approximation of medieval armor. Everybody signed waivers, but everybody also knew that the waiver was meaningless, and we were really just relying on people’s honor:
I solemnly swear that I know that people are going to do things that might hurt me, that I will under no circumstances hold the organizers responsible for any injury I receive, and that if I receive an injury I believe was done by malice or actions outside the norm, I shall blame only the person who directly caused it.
But there was no legal way to hold us to that, so it was a matter of honor.

I suspect that to be the case with that race you described: the crucial issue wasn’t so much that death wasn’t covered by the waiver as that the waiver was legally meaningless, and it was only the family of the man who died who felt that what had happened was beyond anticipated risks, and that somehow the organizers were at fault.

4

To add an “I was under the impression” note - I was under the impression that while you could get someone to waive such rights on a general principle, you can’t legally absolve yourself of negligence itself. If someone is injured or killed due to your actual negligence, no contract will help you; if they’re injured or killed but not due to your negligence (i.e. it’s a genuine accident and negligence on your part cannot be shown), then such rights can be waived - but it’s still pretty strict and hard to do.

5

If someone is injured or killed NOT due to your negligence, then it’s not your fault and you are not liable, waiver or not.

6

Death in regard to a waiver is still considered an injury, a fatal injury. I competed in motorsports for many years happily signing the waivers without reading them. When I finally did read one, it did mention injury and death and that I accepted that is part of the sport. A smart attorney can also get around the legalese of a waiver. When Adam Petty died in a race car, his mother sued the track and NASCAR. The suit did end in a settlement for the Petty family and NASCAR now requires the latest safety equipment available. It was too bad it took 4 deaths in a relatively short period of time before NASCAR took safety more seriously.

7

I’m pretty sure there are other causes than negligence for which you can be liable. For example (in English law at least) there is the concept of “neglect”, which differs from negligence but may still create liability; and of course there’s actual intention, which certainly isn’t negligence. In addition, there’s “recklessness” (I think the US calls is “willful blindness” or some such) which again differs from negligence; and there’s also strict (or statutory) liability for some things which require none of the above. There are also other concepts like “command responsibility”.

All these things do not fall under the umbrella of “negligence” but can give rise to liability.

8

Very true, however I was responding to a situation like in the OP where strict liability isn’t a factor.

This is where I believe the source of confusion sometimes comes from. If I slip and fall in a grocery store, I don’t automatically cash a check. I need to prove that they were somehow negligent and breached a duty causing me to fall. Also, typically when one says that person X was not negligent, it is a statement to relieve him of liability and is implied that he further didn’t act intentionally or recklessly.

However, I could have been more clear. Thank you.

9

[slight hijack]
I remember making a point similar (but not exact) in another thread about a school not allowing students under a certain age to walk home. One poster said that they could write a letter absolving the school of all liability to which I replied that if something happened they would still sue the school.

10

That may be true depending on the circumstances. The overall idea is that for public policy reasons, we don’t want people to be able to get out of paying for their negligence just because someone at a particular point in time absolves them of any negligence.

Worse, this would usually be done in a form contract without giving a person a reasonable chance to negotiate it away. Could you imagine if it was embedded in a school consent form that even if a teacher molests your child, you agree not to sue? That would be abhorrent and we don’t allow it.

Things like you posited should be allowed. Unless the child is so young that society as a whole would consider it abuse to let the child walk home alone, a parent IMHO should have a right to give informed consent to instruct the school to let the child walk home and thereby absolve the school of liability.

I think that in that circumstance, we have taken the general rule too far.

11

They’re not meaningless; you can indeed sign away such rights as part of a contract. Under English law at least. As long as it is made explicitly clear to you what you’re signing, and as long as the wording is sufficiently clear as to exactly what you’re signing away. If a valid contract clearly states that one party is exempted from liability for personal injury, they are exempted.

You can. The rules for what the clause has to look like are set out in the case of Canada Steamship v R. It’s strictly interpreted by the courts, who are often keen to strike down such clauses, but it’s possible.

This is an entirely different scenario because it’s not in the context of a valid contract. If you just write a letter to someone saying “you’re not liable for …”, and they do nothing in return, that’s very unlikely to have any meaning in court. The example in the OP presumably concerns a contract - the racetrack agreed to let the contestants use their track, and in return the contestants paid some money and signed the waiver. That’s potentially enforceable.

12

It also makes sense for Texan law to be the same as English law in this regard, because it explains why only the family of the dead man sued, not the families of the injured men. The clause only stated “personal injury” and that’s unlikely to be deemed wide enough in scope to constitute a valid exemption clause covering death.

13

How does that affect a charge in the criminal courts of criminal negligence?

14

You can’t exempt yourself from criminal negligence! In criminal law the case is being brought against you by society, for something you’ve done wrong against society. It doesn’t matter in criminal law if your victim has signed a contract exempting you from negligence against them, because they’re not the one bringing the case against you.

15

Exactly - there’s criminal negligence, meaning someone did something so stupid it’s criminal. Then there’s civil lawsuit negligence as in, you did not do your duty, caused damages, and you need to pay the injured/damaged party. Nobody can sign away the right of the state/crown/government to get involved and charge another person with illegal behaviour.

The classic example crops up in hockey. People know it is a contact sport and you can’t charge someone with assualt for checking you, it is a reasonable and normal part of the game. However, someone can’t take a deliberate roundhouse swing at your head from behind with their stick as a club, then claim it’s part of the game. Players have been charged with assault. It is, after all, against the rules. While minor infractions do happen, gross assault is not an accepted and normal part of the game. (We hope).

I used to work with a community non-profit ski hill. We had the standard waiver on the forms and the lift tickets, but a lawyer member did mention that it was worthless. Few people in Canada manage to sue for much in the way of damages, since the majority claim in US cases for example is medical expenses and that doesn’t apply in Canada; but if someone were injured or the injuries were seriously aggravated by inappropriate actions of the ski hill, the hill would be on the hook with or without a waiver.

It all comes back to what’s reasonable. Car races and downhill skiing are sports with an element of danger. But for example, if a piece of equipment is left in the middle of the hill or pylons are not covered with padding, that’s unnecessary forseeable danger and likely negligence.

So in the car race in the OP - the question is likely, did they sue because the race was dangerous? If so, they likely would have lost. More likely, they sued over something like inadequate roadside crash barriers, a dip or pothole or slippery section that should not have been there - some way in which the race organizers failed in their duty to provide a reasonably safe environment. The argument is that drivers know racing carries a risk; they do expect, however, unless it is pointed out differently, that “all reasonable precautions have been taken”.

16

I’m not sure about any of this analysis. The hockey example is a completely different issue because it’s concerning criminal activity. Body checking someone on the street is battery, but doing it in a hockey game is not because the defense of consent can apply in sporting scenarios. It’s completely different from contractual exemption clauses excluding civil liability, which is what the OP is talking about.

Do you have any cite for the claim that the ski hill would be “on the hook with or without a waiver” if someone were injured? As I’ve already said, in English law the waiver would indeed exempt them from liability as long as it’s correctly drafted and signed.

Lastly your analysis of the race doesn’t explain the OP’s scenario. If the family of the dead racer sued because of, say, inadequate crash barriers, why didn’t the families of the injured parties sue as well? It makes much more sense if Texan law is like English law, where a waiver which specifically exempts liability for “personal injury” only will indeed cover personal injury, but won’t be deemed wide enough to cover death.

17

I was told at the (kart) racetrack that the waivers were almost worthless because while you can sign away your rights, you can’t sign away someone else’s - and it would be your insurance company that would be suing them after a bad wreck.

18

When you say English law, do you mean the UK? Because in America, I was under the impression that you couldn’t disclaim negligence in a contract for public policy concerns.

Otherwise, I could put a disclaimer on all business forms saying “I am not responsible for anything.” Then, if you visit my restaurant and I poison you because I haven’t cleaned the kitchen for months, then I’m in the clear.

19

Yes and no. The hockey example applies if, say, the injured player were to sue for damages due to injuries sustained; if the injuries were those to be expected in the normal course of the rough and tumble of game (up to and including having your throat slashed open by a skate, which has happened) then the player consented to this activity and must have understood the risk, especially if they are a regular player. OTOH, if negligence or criminal activity (action clearly well above and beyond the normal game activity) cause the injury, then the player has every right to sue and the state has every right to charge someone.

IANAL - this is what I was told. In the ski hill example - just because you fall, or fail to stop and hit a tree (cue Sonny Bono) does not mean it’s the owner’s fault. However, any failure to run a proper hill can be brought up as contributing negligence - including no crash barriers to equipment, lack of warning signs, failure to properly supervise other patrons resulting in collisions, etc.

This is the same logic that applies to slips and falls in a store; you don’t sue because you fell in their store, you sue because they didn’t clean up the spill in aisle three, or they didn’t clearly mark the “watch your step” or get rid of the ice on the sidewalk. The moral of the story is that a good(?) lawyer can find something that in some way contributed even a tiny amount to the injury - the hill was too icy because you didn’t use the snow groomer - and turn that into a case of contribution to the damages and make the owner pay.

I have never heard of a life insurance policy company being able to collect from the party which caused the death. The medical insurer, maybe - for the medical costs up until death. Auto insurance would not apply on a private course, and odds are racing cars are not licensed and insured like regular cars. (The liability of an organizer of a rally on public roads is a whole different kettle of fish, I’m sure…)

There’s the legal concept of “so broad it’s meaningless” in legal / contractual terms. The waiver for skiing, for example, says something like “I understand that skiing is a sport that can contain some dangers, including snow conditions, hidden obstacles like rocks, …” . At least in Canadian law AFAIK, you can’t really sign away rights absolving the other party of gross negligence - although it may be harder to sue if the neglect is minor.

(There is also a case in Canada, based on a prenup/divorce case. The couple were lawyers; the wife signed based on the assumption “this is so one-sided, a judge will throw it out.” The judge basically said… it’s not that unfair that it’s unconscionable, and as a lawyer you knew exactly what it meant and you consented. You cannot automatically presume that a judge will negate your consent.)

Whether the Texas story is true, or simply that the damages of death are greater than those of personal injury, or what the real story is - who knows? Maybe it’s a simple as you cannot sign away the rights of your heirs to sue over your death.

20

Yep, in the UK (although Scottish law is different, so I can’t really call it UK law). I have no idea whether or to what extent US laws differs, although the UK law would perfectly explain the discrepancy the OP is asking about.

I’m not sure exactly what you mean by the restaurant example, but bear in mind how much importance the courts here place on firstly bringing the other party’s attention to the exemption clause, and secondly drafting the clause so it’s specific and explicit. If a restaurant puts on its business forms somewhere a note saying “I am not responsible for anything”, that will fail for two reasons: one it hasn’t been brought to the customer’s attention anywhere near sufficiently, and two it’s not specific enough. If, on the other hand, the restaurant puts a waiver in front of you before you eat which has a clause written in bold, red writing saying “we will not be liable if our food causes you food poisoning” and you read and sign it, that will probably exempt them from liability when they (accidentally) poison you. It’s not a very likely scenario.

Sure. Unless you’ve signed a waiver that’s been correctly drafted and brought to your attention sufficiently.

This is true; the clause has to be wide enough in scope to cover the relevant type of injury, but not so wide that it’s unconscionable. But this is just quibbling over how the exemption clause needs to be drafted.