Having a solid liability waiver is vital for anyone promoting off-road races.
All off-road sports are inherently dangerous and involve clear risks, but so it not having a well-written liability waiver.
Not only are waivers your first line of defense against personal injury lawsuits, but they remind you that, as a race promoter, it is your duty to avoid being negligent.
By making your racer’s sign a liability waiver, you require them read and acknowledge that they assume the risk of injury that could result from a race.
However, it also reminds you that a waiver only covers you to a point.
What point is that?
The point where your waiver leaves you open to lawsuits.
It’s no mystery that waivers often contain express assumption-of-risk language.
This requires that all racers acknowledge the risk before they participate.
That latter — the “racer’s acknowledgment” part — is the most important.
Most racers don’t encounter waivers until race day, where signing one is often a common requirement to race entry.
It has become a very normal thing for racers to do.
No waiver, no race.
You make them sign it in hopes that it will protect you from injuries resulting from the ordinary negligence of the race.
But do your liability waivers actually protect you and your business?
You should probably know the answer to this question long before you ever hold your first race.
If you’re having problems with your waivers, here are a few things you should be aware of when creating your liability waivers:
#1 — Don’t make it up yourself
In classic liability waiver cases, a racer injured while participating in your off-road race will have a questionable liability claim due to their signing of a liability waiver.
That is if your liability waiver is valid and enforceable.
Valid and enforceable?
Most race promoters believe their waivers are written to prevent their racers from suing them if and when they crash or injure themselves.
Surprisingly, few race promoters have liability waivers written in a way that actually will do that.
They use a cookie-cutter version of a waiver they found online, or use the waiver given to them by one of the race associations.
This is a one-size-fits-all approach.
Remember that part about States being a mixed bag of legal issues?
Few race promoters write their waivers specifically for their racers, and fewer still consult an attorney about what language should and should not be in their waiver.
Why do they do that?
Attorneys are expensive.
Cut-and-pasting legal mumbo-jumbo from the Internet is cheap.
It’s only when the race promoter is sued by an injured racer, do they understand how their own State law’s address liability waivers
Every year, race promoters find out just how much protection their poorly crafted waivers provide them.
Your liability waiver is your first line of protection against a lawsuit.
However, if you try to draft it yourself, a bad waiver can provide an avenue for an injured victim to sue your company.
Don’t try to save a few bucks and leave yourself unprotected by trying to create a weak liability waiver yourself.
#2 — Don’t race without knowing your State’s law
In simple terms, a liability waiver does three things for both you and your racers:
- #1 — It informs them that off-road racing is inherently dangerous and involve clear risks
- #2 — It limits they’re right to sue you in the event of injury
- #3 — It provides an assumption of risk defense that can be utilized by you in the event of a legal claim
But, if you think that by having racer’s sign your liability waiver protects you from all liability, think again.
A liability waiver — by itself — does not remove the race promoter from liability.
Does this mean that liability waivers are useless?
Not at all.
Liability waivers in most States are a mixed bag of legal issues when it comes to enforcing them outright.
Some enforce them, some reject them, while others review them very carefully before passing judgment.
This means that a waiver you use in one State, might not carry the same protections in a neighboring State.
You need to make it fit the criteria set by common law principles and the liability laws of your given State.
It means that you need to be intentional when creating a liability waiver.
#3 — Don’t be surprised when you get sued
Unfortunately, being sued is a part of being in the race promotion business.
We all know that injuries are going to happen, and most are going to be self-inflicted.
But regardless of the liability waiver, an injured racer’s signed, a few will still try to come after you for damages.
According to Stites & Harbison, a Mid-Atlantic law firm that specialized in liability law, they cite a study that claims that over four million extreme sports injuries were reported between From 2000 to 2011, of which 11.3% were head and neck injuries, with concussions the most common risk among participants of all types of extreme sports.
That means no matter how careful you are, at some point, someone is going to get injured during one of your races.
Fortunately, the study cited by Stites & Harbison stated that of the over four million extreme sports injuries reported between From 2000 to 2011, many of them showed that exculpatory clauses (e.g. liability waivers) were found to valid and enforceable under common law principles.
That’s the good news.
What’s the bad news?
When the exculpatory clauses (e.g. liability waivers) violated public policy or the damage was the result of willful or wanton conduct on the part of the defendant, they were found to be not valid and unenforceable.
In other words, when the injury is a result of the race promoter’s gross negligence or deliberate misconduct, the liability waiver did not provide any legal protection.
While a liability waiver does provide some basic protections, it doesn’t mean that a race promoter can just do or build what they want.
If a race promoter creates a course that is too dangerous, racers might be able to prove that the dangers encountered were beyond those that a reasonable person might consider being part of a normal race.
Cliff edges, fast moving water, lightning, extreme heat, downed trees, rocky trails, off-camber turns, of even steep descents could all be consider something most courts could see as not part of a normal race.
The law has concerned itself with setting up standards that will encourage people to act with a reasonable degree of care when it comes to negligence.
Allowing someone to determine ahead of time that they will escape any consequences for failing to exercise care would defeat the purpose of the legal standard.
But, on the other hand, three-story ramps and big dirt berms might be completely normal in a freestyle mountain bike or motocross event.
Same could be said for an ultra trail run that covers 100-miles of mountain trails.
A cliff edge could just be part of what ultra trail runners want in a race.
If a trail running falls off a cliff during a 100-mile run where cliffs are considered normal, can they sue the race promoter?
Fortunately for race promoters, there is a high hurdle to jump when it comes to dismissing a waiver.
Always have a good waiver
As a race promoter, you should never do any event without having a liability waiver.
It is the minimum amount of legal protection you can provide you and your company.
Several racing associations do provide you with their version of a liability waiver but remember that these waivers are normally one-size-fits-all.
Your State might not have the same legal protections that a race association in say Colorado has.
This is why you should always consult an attorney when dealing with legal issues such as liability law.
And now you know!
Please note: I am not a liability law attorney, and this article in no way constitutes legal advice.