Personal injury waivers in the information age.

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3/9/2021 8:13 AM

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?

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3/9/2021 8:34 AM

Format of waiver doesn't really matter.

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.

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3/9/2021 9:20 AM

Was it a single to table?

(sorry, couldn't resist)

Cheers
Simon

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3/9/2021 9:27 AM

I think (and I am no expert) that the logic is that a person cannot sign away their right to be safe and / or assume the risk on themselves that the environment that they are conducting the event in is safe.

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.

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3/9/2021 9:33 AM
Edited Date/Time: 3/9/2021 9:33 AM

My brother and I were working through this. We have a track and get people asking all the time if they could come ride. We have talked with a lawyer in the past and we’re pretty much told a signed waiver is a good idea but won’t save you. Unfortunately we haven’t found a good answer either.

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3/9/2021 9:35 AM

The biggest issue with waivers in court is, was the signature forged? Waivers are accepted to an extent. In Mississippi, an on site, day of event waiver is useless. The only waiver that will hold up in court is one done one of two ways, either picked up before the event, signed and notarized and turned in before or at the event. Or, downloaded from the event website, signed and notarized and turned in at the event. Having the signature process eliminated from the event site and the event staff ensures the signee fully waives whatever is asked on the form

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3/9/2021 9:36 AM

Skerby wrote:

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, ...more

Interesting thought.

If something went to court I definitely think that would be some compelling evidence for the track/promoter to have.

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3/9/2021 10:32 AM

The equine world has this figured out for most states and it is written into the state laws. We as a sport need to lobby our states for a similar action. Photo

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Germany 1975 250 CZ Centerport, laydown shocks, mikuni with reed valve, Marzocchi forks with me as the motopilot

3/9/2021 11:00 AM

Good old USA. The land of zero accountability.

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3/9/2021 11:04 AM

Tim507 wrote:

The equine world has this figured out for most states and it is written into the state laws. We as a sport need to lobby our ...more

My daughter takes horse riding lessons here in TX and they have the same sign up. I wonder if its because its an animal, which is by nature, unpredictable, that is the difference in riding a horse, and riding a motorcycle

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3/9/2021 11:16 AM

Skerby wrote:

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, ...more

This varies state by state, and no answer here will substitute for consulting with a local lawyer.

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.

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Twitter: @ftemoto
Instagram: @mstusiak

3/9/2021 11:17 AM

fourfourone wrote:

Good old USA. The land of zero accountability.

This actually cuts both ways in this situation.

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Twitter: @ftemoto
Instagram: @mstusiak

3/9/2021 11:22 AM
Edited Date/Time: 3/9/2021 11:24 AM

Tim507 wrote:

The equine world has this figured out for most states and it is written into the state laws. We as a sport need to lobby our ...more

zookrider62! wrote:

My daughter takes horse riding lessons here in TX and they have the same sign up. I wonder if its because its an animal, which ...more

If the sign in Texas cites a statute, that its why the sign is up. Texas also is a pretty plaintiff's lawyer friendly state, but I am not sure suing your horse master in Texas will go far. . .

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.

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Twitter: @ftemoto
Instagram: @mstusiak

3/9/2021 11:36 AM

Travis Pastrana used both signed and video for release of liability. We did the same at my own track. Like others have said, still can't always protect you but can help.

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3/9/2021 1:06 PM

Not a bad idea, most likely to discourage filing a lawsuit knowing that video is out there. Easy to do with a cell phone, and I would shoot a photo of their ID to confirm the signature as well.

Signs posted around the property including the rules at the entrance are also helpful.

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