The 12-car Daytona wreck over the past weekend injured over 30 fans when flying debris got beyond the protective fence on the track. The success by victims in the inevitable lawsuits to follow will center on the extent that courts enforce the liability waiver on the back of the event tickets.
Liability Waiver on Daytona Speedway Tickets
Reports indicate that the disclaimer/waiver on the back of the tickets states as follows:
“The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.”
That is fairly vague language in my opinion. This issue will receive a lot of attention, a lot of scholarly debate over the use of liability waivers and disclaimers in athletic and spectator events.
Examining Good Premises Liability Waivers
Have Clear Language
Outdoor recreational businesses should take this opportunity to take a look at their own liability waivers and the circumstances under which they get them signed. In Florida, courts have used the language “clear and unequivocal” as a standard of review. In the Daytona Speedway case, it is likely the track will consider their tickets to be clear and unequivocal but the injured parties will not. Many states require liability waivers be very specific about the types of matters that a customer is waiving.
A court will normally be more impressed with a liability waiver that was negotiated at arms length than a statement found by a fan in the stands after getting out of the ticket line. Essentially, a liability waiver is a form of contract and, as such, both parties should clearly understand what the contract states. There should be a “meeting of the minds.” Was the “bargaining power” among the parties fairly equal. Did the customers at Daytona realize that they had assumed the risks of anything and everything that might happen to them in the stands?
Plaintiffs will argue that the fence left them the impression that they were adequately protected from flying debris. They’ll argue they didn’t even know the tickets contained the disclaimer. They’ll argue the provision was vague and ambiguous at best.
Most states hold that any ambiguity in an agreement is resolved against the drafter of that document. In that regard, many states require that liability waivers (which are often disfavored by courts due to the fact that so much can be given up in exchange for so little), be very specific about the claims a person is giving up. There will be a multitude of fascinating legal nuances to debate as this series of cases unfolds. Many law professors all over the country will use this as a case study in their premises liability classes.
Reasonable Expectations for Safety
On the other hand, the courts of most states in defining negligence are concerned with the duty of the entity putting on an event. What are the “reasonable” expectations as to safety. What would a “reasonable person” do to make his premises reasonably safe, not perfectly safe. There will no doubt have been many warning signs posted around the track warning patrons of dangers.
Normally when dangers are obvious and apparent, courts tend to find that participants can’t recover. Courts will consider what degree of risk has been assumed by an injured party, especially with inherently dangerous activities. Can a child assume risk? At what age? These issues can become very complex and whether you prevail in court or not, you can spend many tens of thousands of dollars in court proving you were not liable. Liability insurance will pick up your legal costs.
Laws Vary by State
Some states, like Louisiana, have laws that deem such waivers not to be enforceable and against public policy. In California, a liability waiver will not provide a shield against “gross” negligence, as opposed to ordinary negligence. The laws of each state will vary on this point to some degree. The lesson for outdoor recreational businesses is to carefully review your own liability waivers with your attorney, as well as the circumstances and processes by which you get them signed.
Lessons to Learn for Outdoor Businesses
A few lessons are clear.
- As the operator of an outdoor business, you’d much rather have a liability waiver than not have one.
- You’d prefer your documents be very specific and well thought out as to what all claims your customers are waiving.
- You’d like to have liability insurance as well, but make sure you understand the inevitable “exclusions” portion of your policy.
- Finally, you ought to utilize well thought out legal entities as fall-backs against liability if the other hurdles you put into place don’t work.
Consider your liability defenses to be like hurdles a claimant would have to get over to get your money. Hurdles will include safety planning in general to avoid injuries and accidents in the first place, liability insurance, liability waivers and legal entities to shield your personal assets from the reach of claimants. Waivers/disclaimers might prevent a person who is actually killed from recovering in exchange for the price of a ticket. For that reason, courts ordinarily take a very critical look at the documents and enforce such agreements strictly. It will be interesting to see what happens.
Mike Massey is the managing partner of the Mississippi law firm of Massey Higginbotham Vise & Phillips, P.A. He writes and lectures extensively on issues involving outdoor recreational business. He can be reached by filling out the contact us form via www.outdoorlawyer.com