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Mayes County, OK
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Edited Date/Time
3/9/2021 1:06pm
I was thinking about this the other day. I may be wrong about this but I think insurance is a big expense for a lot of tracks, and in some states the personal injury release does not hold up in court.
What I'm thinking is instead of a waiver, you make all riders submit a short video wherein they acknowledge that what they are about to do is dangerous and that they assume all risk.
Would this hold up in court better? Could tracks get cheaper insurance this way?
What I'm thinking is instead of a waiver, you make all riders submit a short video wherein they acknowledge that what they are about to do is dangerous and that they assume all risk.
Would this hold up in court better? Could tracks get cheaper insurance this way?
Most suits are predicated on some notion of gross negligence or deliberate disregard for safety by management, which generally the courts have held cannot be waived.
(sorry, couldn't resist)
Cheers
Simon
It is always a fair assumption that the people running the event have made every effort to make it safe. If you write it down, make a video or cut it in stone, it doesn't make a difference I do not think.
The Shop
If something went to court I definitely think that would be some compelling evidence for the track/promoter to have.
In California at least, the key is to be very clear and specific about what rights are being waived (including claims of simple negligence if identified), and there is good case law on the assumption of risk in OHV riding on natural terrain. Of course, there are virtually no motocross tracks without some human modification, which introduces the simple negligence/gross negligence/reckless and wanton/intentional conduct continuum of culpable behavior. Anything other than simple negligence is generally not waivable in California in order to induce people to use care when they invite others to use facilities.
It is also important that no waiver, even the best and most airtight in jurisdictions that allow waiver, ever will prevent one from actually being sued. The waiver is only a defense, and defenses are expensive, especially if you cannot get summary judgment on the simple/gross negligence issue.
You definitely are on the right course that a track should include insurer to have the best possible waiver and release, even if not retaining counsel.
Again, the assumption of risk laws vary state by state. In some they allow very generous protections related to the activity, in some they distinguish natural risks from risks exaggerated by negligent conduct. The sign doesn't mean a thing if the law doesn't back it up.
Defintely the powersports industry needs to be vigorous in lobbying friendly legislation.
Signs posted around the property including the rules at the entrance are also helpful.
Post a reply to: Personal injury waivers in the information age.