Based on the facts presented (skeletal) i think that you are safe on the waiver. Did you read my waiver post? Part is copied here:
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?
Again, sorry this has become such a lengthy thread. My point is this:
Anything can happen during a race- Anything. You need to be comfortable with that prior to entering. My problem with the influx of people into “extreme”, endurance or “adventure” sports is that some people (the minority I suspect) understand the risks are limitless, they cannot (and SHOULD not) be divided into “acceptable” and “unacceptable”. It is the nature of sport and adventure: Opportunity for loss, opportunity for gain. Unpredictable outcome. Another (larger I suspect) group feels the race director has a “responsibility to provide a safe race”. Well, therein lies the problem. Racing is not safe and things goe wrong. It is the nature of the activity and part of the allure. There seems to be a group mentality or emerging conciousness that “If everybody is skydiving (doing Ironman, bungee jumping, climbing Everest, etc.) it must be safe, perhaps the risks have been overblown.” And the activities have become more mainstream with a higher degree of acceptance and participation. Because the sports are dangerous the body count gets higher too. Comes with the territory. What we do is dangerous. You can’t waive that, litigate that, transfer that. Ultimately, we choose if accept the risks- all of them.
I think that the high media exposure of many of these extreme activities has given many people the perception that the activities are somehow “less risky”. It’s often not until you get into the situation and your own emotions, experience and skill get overwhelmed that you realize how serious the risk really is.
Example: It dawned on me one day 12 days into three week trek in Nepal 1995 that we were at least a 5 day walk from any outside communication. There were no roads and the nearest phone was at least 5 days walk away. What if I twisted my ankle badly. What if I fell really ill. What if I succomed to altitude sickness. I don’t think that I changed my behaviour significantly, but in this situation I was not going out of my way to court further risks and exercised caution in what I was doing so that I knew I was in control at all times.
but I’m curious who would be chased in that situation - the race director or his car insurance company?
My opinion? (I think I am becoming hypothetical lawyer!) If there was negligence and if that lead to a foreseeable loss, and if there is not a “closed road” or “race” exclusion from the standard auto policy in that jurisdiction, then I think the auto insurance would apply.
Yup, My point exactly Fleck. and hats off to you- becasue you were cognizant (sp?) of the risks and acknowledged them. You did not transfer the responibility to anyopne else. You realized them and accepted them. You’re a good man Fleck (I’m assuming you’re male, I apologize if I’m wrong).
Ultimately, we choose if accept the risks- all of them.
Tom,
I bet we agree on more than you think. However, I am not sure that you fully understand the concept of risk, from a legal point of view.
Let me try another example that happens to be true:
We had a criterium here locally. Guys fell, hit curbs, ran into each other, got hurt, etc. They did accept those risks…“all of them.” However, a bad event did happen. A car ran through a baracade (stop sign too) and hit a few guys at the back of the peleton, hurting a couple guys pretty badly. They brought claims against the driver for their losses and damages. Note, this is a risk too and falls under “all of them.” Surely you are not against their right to be compensated for their loss, and they didn’t ultimately choose to accept that risk, right?
How are we doing? BTW, I agree completely with Fleck too.
I hope my being an attorney is neither incentive nor disincentive to agree with me. I only threw that fact in to show where I am coming from. Anyway, one of the things I learned in law school as that most areas of law dealing with realms of basic human interaction (contract, torts, property) have rules that are very common-sensical and efficient. The is best illustrated in torts and especially in negligence. At base, we all have a duty practice due care to one another. What care is due is judged by how a reasonable person would act under the circumstances. Nobody expects a reasonable race director to account for all risks that may be encountered during a race, only the ones that a collection of, at best, the RD’s peers (if not just lay people) would deem reasonable. To say otherwise would subject the RD to an inefficient, if not insurmountable, task. You say that differentiating between acceptable and unacceptable risk is “invalid.” I am not exactly sure what this means. People make distinctions beween acceptable and unacceptable risk all the time. At a race, both the RD and the athletes make these decisions as well. When this calculus goes awry and the time comes to determine who is liable for an injury, I don’t see why you would automatically shift the burden of dealing with all risk to the athlete. Certainly the athlete bears some responsibility, but so does the RD. Afterall, the RD is familiar with the region, the weather patterns, the terrain. If nothing else, it is more efficient to make the RD responsible for some risks because dictating that each athlete learn everything the RD knows or should know would be untenable and elevate every race to the equivalent of an expedition. Ultimately, our responsibility to ourselves and one another is best seen as a continuum that continually shifts based on circumstances. In my opinion, anyway…
… And therein lies the very nature of risk my good man. It is unpredictable. You are correct: A race director cannot know all the risks, nor can an athlete. But both parties know their are common risks and extraordinary risks. This affair of differentiating between the two I do not understand. You do a good job of explaining it in some terms, i.e. when selling/buying property, contracts, etc. But I don’t (personally) believe risk/danger can be “subcontracted”, transfered or assigned. Imagine: "O.K., sudden heart failure, collision with vehicles who invaded the course despite marshalls, mechanical failures resulting in death/injury- those are your responsibility as athlete. Disease producing germs in the water, starting the race in dangerous weather conditions, those are the RD’s responsibilities- death by lightening strike, aircraft crashing into competitors- those fall in that void known as “act of God”. I fail to recognize those distinctions. and I think, therein lies the source of our dischord on this topic. Your thoughts are well informed and appreciated.
in any given situation does not mean that nothing is reasonably foreseeable. (I just read what I wrote; of course, nothing is foreseeable in a literal sense, however something can be reasonably anticipated and that is what I am talking about.) The risks that a party can reasonably foresee are the ones they are obliged to guard against or assume. Different risks are foreseeable to different parties based on different information available to them. The crit example above is a good one. In the event of an injury, cost must be allocated to someone. Tom, and others, suggest that because anything can happen, and we all know that – at least theoretically – anything can happen, then the person to whom something happens should, based on nothing other than their status as the victim, bear all of the cost. We have limited this discussion so far to civil liability but, in principle, why should we? This rationale could just as easily apply to criminal liability, couldn’t it? If not, why not? Obviously, this is rhetorical, I assume that we all agree that a murderer, an not the murdered, should bear the cost of the murder. But under Tom’s framework, I can’t sue the murderer on behalf of the estate of the murdered and their spouse for any sort of monetary damages. Is this the way the system should work?
First, I have the highest respect for you. OK? That is a given.
Why haven’t you addressed any of my examples? Are you just asserting contrarian opinions for fun? That is ok of course.
The difference is inherent risks (no liability) and risks caused by someone who is at fault, which the law defines as negligence and there is liability. Take my bike race real story from above. Does that not illustrate a clear difference? How is a car breaking the law, invading a course, running a stop sign, etc the responsibility of the athlete? What if a car runs a stop sign and hits you on the wy home tonight…is that just hard cheese. Don’t pay for the car damage or anything? I really don’t understand when you say you should accept “all risk” and that all risk is the same. Clearly it is not.
David & Garth, in my second scenario, the motorcycle was directed to stop for a countdown penalty of 3 minutes. The motorcycle stopped and idled on the right hand side of the road. The rules state that unless a bicyclist is passing another bicycle they must stay on the right hand side of the road. The bicylist runs into the back of the motorcycle, injuring himself, the bicycle and the motorcycle. Do you thing the bicyclist’s signing the waiver and assuming the race risks protects the rd? Or is this the same thing as you and I riding down the street and a person opens their car door on us?
In the car incidents, there is redress against the tortfeasors, the drivers. In the case I cite, if the waiver holds, you’re stuck with $25,000 excess accident insurance from USAT or your own personal insurance if you have it. If the crash caused brain damage or paralysis you’re a goner.
It is tough to answer your hypothetical question about the collision between cyclist and motorcycle-born marshall without a better understanding of what happened. However, absent any dramatic swerves, squealing brakes or some other notable “oh, shit” moment, I have a hard time imagining that the marshall’s conduct as anything worse than simple negligence, in which case the waiver covers the RD. Cycling in such a way that one cannot avoid readily apparent hazards is not reasonable and thus, even if the marshall was negligent in parking his motorcycle in the way of oncoming cyclists, the cyclist was probably contributarily negligent by riding his bike in such a way as to hit the motorcycle. Maybe I am not understanding everything that lead to the accident, though.
Sig, if you are talking about a real situation, with real injury, you should talk with a real, live attorney who can review the waiver, look at the law in the applicable state and give you good advice. Many personal injury lawyers will do this evaluation for free or a nominal charge. If you are just exploring the topic, rock on.
I agree with Garth’s analysis; although it does present an interesting question. According to your facts I agree that the cyclist should have his bike under control. BUT, What if the course motorcycle had run the proverbial stop sign and hit the competitor (remember I am now the hypothetical lawyer :))? Should not liability then properly attach?
David, the problem of your negligent driver injuring the racer is that the discussion is about race director liability. So, of course, the driver, never having received a waiver, or even having the benefit of assumption of risk would be liable to the rider.
I think Tom’s main point was that racers assume all risks associated with the race, or to quote Captain Kirk, “risk is our business.”
The problem with such a broad statement is that it is so broad. That is why presenting hypotheticals to test the statement is necessary (as you have done). What if the race director got drunk, was having sex while driving a vehicle and crashed through the barricades to injure a runner or rider? Maybe even Tom Dennerly would agree that that is not like being struck by lightning.
David, the problem of your negligent driver injuring the racer is that the discussion is about race director liability.
The purpose of the example is to show that “all risks” are not the same, as you point out so well. The law really is a social science. As such it is on a continuum. The answer on “risk” cannot and should not ever be an absolute. Does this make for some difficult situations, probably. But, I’ve never heard of or found a better solution.
Funny you should ask about my experience, one of my specialties is that I help structure settlements for attorneys/insurance companies. In short, I’m on the logistical side of the “paying the bill” scheme. Basicly, I don’t believe there is a better system. However, what I did say is that the legal system is simply a part of the cost stucture for businesses.
What I have experienced is this:
in general, civil cases that go to courts are not settled out because they are NOT the best cases. By and large, those cases that go to court are those where the plaintiff has nothing to loose and everything to gain. By the same token, the defense has no reason to settle out of court since it’s a bogus claim. What happens, it goes to court. If it has true merit it would be settled out of court because both side have more at stake putting it into a juries hands.
in general, criminal cases work under the same premise. Those that are fact driven, the D.A. seldom will plea the case to a lesser charge. In turn, the defense has nothing to loose and everything to gain by taking it out the D.A.'s hand and into the juries. In essense, the juries see mostly cases that have plenty of evidence to hang the bastard. But, the defense is depending upon the jury for a light sentence because he won’t get it from the D.A. It’s less about guilt and more about sentence.
Chipping away at our rights is not what I think it’s all about. It’s about chipping away at my (and your) pocket book. Our rights are guaranteed. Unfortunately, rights are not necessarily what are protected by the courts. It is usually the pocketbook.
If it was what is right or wrong that is being judged in a court room then I don’t believe you would see the kind of economic benefits gained. The judicial system is a business. If it wasn’t, you would adds on TV saying, “Have you been wrongfully treated or injured…Where you were definatively in the write with proof and evidence. If so, will find a way to get an apology and reinbursement for your actual losses” No what you have is, “Have you been in an accident. Come see us. Will get you money.”
That is what is called transferance of responsibility… it’s always some elses fault. And I have arrange millions of dollars of structure settlements to prove it. I deal with the “by-product” generated by those who will not stand in front of the jury but would rather take the sure thing over the court’s unpredictability. Jury court systems deal mostly with the “waste-product” of the judicial system.
And yes this works, but not because of the court system but it’s what doesn’t go to decisions by the courts that provides for justice. I find that Ironic.
Joe Moya
BTW, accountant, engineers and other professions doesn’t mean they are are intuitive and intelligent enough to not be manipulated by lawyers use of the facts. What it means is they have a degree - period.
Basicly, I don’t believe there is a better system.
Good. I am glad that we at least have a little common ground.
I believe I asked earlier if you had ever been in front of a jury. It is amazing the incite you seem to have on the way they work. (joking, and don’t mean it quite as sarcastic as it sounds) Actually I try to do just the opposite of what you state…I try to try my best cases. I would make no economical sense at all for me to try bad cases, because I would have a lot to lose - time, money, reputation, momentum, etc. That just doesn’t make practical sense because of the very business aspect that you bring up.
Also, although our rights are guaranteed, they are also very fragile. They do need to be protected and I’m glad and proud to be part of a system that does it, imperfect as it may be.
Now that is a very interesting (and refreshing) business model. The law firms I have seen which use volume over substance don’t follow that model. They settle the sure things for what think is about 75-80% of what they might get in a court of law. OTOH, If they see a low probability of winning a out of court settlement, …they go to the courts.
They have no momentum or reputation to defend other than the economic one called “profit to the firm”. Time and money are in direct proportion to the number of clients they have. And, More client’s = more potential settlements.
Sad, perhaps. But, that seems to be the majority.
Oh yea, and it still is the best system… I have about tens of thousand of dollars worth of Tri-toys to prove it. For the loser, the system may suck, but I have my lips tightly wrapped around it .
As I always say, I make money no matter which side wins. Very few professions can say this (except doctors - you still pay them if the patient dies. go figure). And I proud of my profession also,… just not proud about some in my profession who promote that which is unethical. I equally despise those who can’t take responsibility for there own actions and assume responsibilities for the risks they take. Whether lawyers perpetuate ‘transferance of blame" can be argued both ways. But, (just in case) you won’t see me talking to a lawyer in the middle of a cross walk while crossing a street - call me paranoid, but that’s my rule and I’m stickn’ with it.
While I may just clean up after the fight. Lawyers and my profession have a lot in common…as I am sometimes confused as being a lawyer, I quickly point out that NO I am not a lawyer. but do belong to the same reptile group - forked tongue and all .
Joe Moya
Note to Tom: this has been a very good NG thread…Thxs.
It was a real situation but it didn’t happen to me. I was a volunteer marshall and I don’t want to get ahead of Greg’s articles. It could be held that I directed the motorcycle to stop and the driver had not been given any specific instructions of where to stop or not to stop. Am I right to say, that even though the waiver appears to protect me and holds me harmless, wouldn’t I have to be included in a suit and have to defend. If an attorney would fail to include me couldn’t there be a possibility of malpractice?