Greg,
I enjoyed reading your waiver article. I too do some practice in this area, and I believe that it is at best somewhat tricky from a philosophical standpoint. I'm not sure I have the full gist of your philosophy....maybe it will be further revealed as your trilogy evolves.
Hand and hand with waivers is naturally this issue of Race Director liability, since that is what the waiver is for. I am a huge race director supporter. I think most work very hard, are under paid, and do a pretty good job.
One of the intents of the waiver, as you point out is to recognize and exclude known risks of the event that are actually part of the event themselves. Kind of like a pro football player "waiving" the right to bring an injury claim for being tackled. That is a known risk that is inherent in the sport, and not caused or enhanced by negligence. However, an overhead sledgehammer with a hockey stick would seem outside any reasonable bounds of expected activity (I think, I'm not a hockey player). For us, getting tangled with another competitor on the bike, although unwanted, is a risk, and it happens. This should absolutely be covered by the waiver, and I think is also supported by law.
I believe that we should not support waivers of negligence, and and the courts in my jurisdiction generally do not uphold the waiver in the areas of negligence. If you can waive negligence then you give the waivee free whim to be unsafe - certainly we don't want that. Of course the difficulty is the matter of interpretation.
To make a rather clear example, running a stop sign in your car and hurting someone is negligent. And, I would hope we agree that the victim should be entitled to a reasonable recovery for costs, expenses, etc. (Now, I'm not getting into what's reasonable - that is another discussion). So, what if, during a race, the race director is driving the course, runs a stop sign, and injures a participant who signed the waiver. Should the RD be immune from the consequences of the act due to the waiver. I say no. Likewise, if there are other negligent acts, that is a deviation from acceptable or reasonable behavior, shouldn't there be responsibility commensurate with the harm?
Before addressing what this has to do with insurance, I'll wait to read your upcoming article.
Not trying to start a flame war, but I can take it; so, what are the thoughts out there.
Thanks!
David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.
I enjoyed reading your waiver article. I too do some practice in this area, and I believe that it is at best somewhat tricky from a philosophical standpoint. I'm not sure I have the full gist of your philosophy....maybe it will be further revealed as your trilogy evolves.
Hand and hand with waivers is naturally this issue of Race Director liability, since that is what the waiver is for. I am a huge race director supporter. I think most work very hard, are under paid, and do a pretty good job.
One of the intents of the waiver, as you point out is to recognize and exclude known risks of the event that are actually part of the event themselves. Kind of like a pro football player "waiving" the right to bring an injury claim for being tackled. That is a known risk that is inherent in the sport, and not caused or enhanced by negligence. However, an overhead sledgehammer with a hockey stick would seem outside any reasonable bounds of expected activity (I think, I'm not a hockey player). For us, getting tangled with another competitor on the bike, although unwanted, is a risk, and it happens. This should absolutely be covered by the waiver, and I think is also supported by law.
I believe that we should not support waivers of negligence, and and the courts in my jurisdiction generally do not uphold the waiver in the areas of negligence. If you can waive negligence then you give the waivee free whim to be unsafe - certainly we don't want that. Of course the difficulty is the matter of interpretation.
To make a rather clear example, running a stop sign in your car and hurting someone is negligent. And, I would hope we agree that the victim should be entitled to a reasonable recovery for costs, expenses, etc. (Now, I'm not getting into what's reasonable - that is another discussion). So, what if, during a race, the race director is driving the course, runs a stop sign, and injures a participant who signed the waiver. Should the RD be immune from the consequences of the act due to the waiver. I say no. Likewise, if there are other negligent acts, that is a deviation from acceptable or reasonable behavior, shouldn't there be responsibility commensurate with the harm?
Before addressing what this has to do with insurance, I'll wait to read your upcoming article.
Not trying to start a flame war, but I can take it; so, what are the thoughts out there.
Thanks!
David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.