United States: Extreme Sports Challenge The Courts

Last Updated: August 28 2015
Article by John L. Tate and Emily Larish Startsman

Extreme sports are increasingly popular in the U.S., and participation is growing. "Extreme" means different things to different people, but participation is not only up in sports such as mountain biking and snowboarding. More people are bungee jumping, hang gliding, wind surfing and rock climbing. As more Americans become involved in hazardous recreation, the number of personal injuries is also rising especially among minors. With injuries comes litigation, of course, and the popularity of extreme sports raises challenging questions of liability.

Risky Business

A study presented at the 2014 Annual Meeting of the American Academy of Orthopedic Surgeons analyzed data reported to the National Electronic Injury Surveillance System (NEISS) to quantify injuries associated with extreme sports. The results were staggering, though not particularly unexpected. From 2000 to 2011, over four million injuries were reported for participants in all seven sports selected for study: surfing, mountain biking, motocross, skateboarding, snowboarding, snowmobiling, and snow skiing. Of these, 11.3% were head and neck injuries, with concussions the most common risk among participants of all types of extreme sports.

Virtually all participants in extreme sports voluntarily embrace the risks and thrills of going faster, higher and farther, but many enthusiasts also must pay for the privilege. Government agencies and private companies often charge admission to parks, slopes and tracks, and one of the common conditions of admission is the requirement that participants sign releases waiving their right to sue for injuries, including those caused by the provider's negligence. Although these liability waivers can be enforceable in some states under certain circumstances, outcomes are highly fact-driven and often unpredictable.

Waiving Liability for Extreme Sports

As a general rule, exculpatory clauses are valid and enforceable under common law principles unless they violate public policy or the damage was the result of willful or wanton conduct on the part of the defendant. Some states have created statutory exceptions to this general principle. See, e.g., La. Civ. Code. Ann. art. 2004; N.Y. Gen. Oblig. Law 5-326; see also Alaska Stat. 05.45.120 (excepting "special events" from prohibition against use of exculpatory agreements by ski area operators). However, agreements to limit liability for injury are strongly disfavored by courts. Therefore, a pre-injury release will only be enforced if, in clear and conspicuous language, it explicitly indicates the intent to release the provider from liability for injury caused by that party's own conduct or negligence.

Even well-drafted releases and waivers can be invalidated as contrary to public policy. Each jurisdiction can apply slightly different factors when assessing the public policy exception, but the basic analysis can be boiled down to two interrelated inquiries.

Assuming that the terms of the waiver are clear and unambiguous, the most important factors governing the enforceability of a waiver are: 1) whether the party being released provides a necessity or other essential service; and 2) whether the agreement is inherently fair not unconscionable. Neither factor is dispositive by itself, but the two are always in the equation when assessing enforceability. Because recreational activities generally are not public necessities or essential services, courts generally find in favor of the released parties on the first factor. It is the second factor where decisions diverge.

The fairness of an exculpatory agreement generally boils down to a question of bargaining power. Almost all releases are provided as take-it-or-leave-it agreements, usually a preprinted form that must be signed before engaging in the desired activity. This fact gives some courts pause. See Stelluti v. Casapenn Enters., LLC, 1 A.3d 678, 688 (N.J. 2010) (discussing the fact that a fitness club exculpatory agreement was a contract of adhesion due to its "take-it-or-leave-it basis," but ultimately holding that the agreement was not unconscionable). Still, most courts conclude that when participation in recreational activities is purely voluntary i.e., no one is compelled to engage in extreme sports the relative inequality of the parties' bargaining power is not sufficient to invalidate the release.

For instance, white-water rafting is a recreational activity that is "not the sort where one party is at so great a disadvantage as to render the agreement void." Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996); see also Saenz v. Whitewater Voyages, Inc., 276 Cal. Rptr. 672 (Cal. Ct. App. 1990). Similarly, skydiving is not an "essential servic, so no decisive bargaining advantage exist[s]" in the agreement to waive liability for injury caused by negligence. Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986). And in the context of amateur auto racing, the Sixth Circuit not only considered the voluntary nature of the activity, but also the fact that "the races could not continue without such protection from liability" Donegan v. Beech Bend Raceway Park, Inc., 894 F.2d 205, 207 (6th Cir. 1990).

A Nation of Daredevils in a Changing Legal Landscape

Looking for legal trends, a category of extreme sports that is nearly ubiquitous downhill skiing and snowboarding makes a useful bellwether. Participation is certainly high. Snowsports Industries America (SIA) calculates that more than 16 million people participated in skiing and snowboarding in the 2013-2014 season. 2015 SIA Snow Sports Fact Sheet.

The vast majority of courts considering the issue over the years concluded that properly drafted and executed releases of liability are valid and enforceable in the context of downhill skiing and snowboarding. See, e.g., Myers v. Lutsen Mountains Corp., 587 F.3d 891 (8th Cir. 2009); Platzer v. Mammoth Mountain Ski Area, 128 Cal. Rptr. 2d 885 (Cal. Ct. App. 2002); McGrath v. SNH Dev., Inc., 969 A.2d 392 (N.H. 2009); Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010); Chauvlier v. Booth Creek Ski Holdings, Inc., 35 P.3d 383 (Wash. Ct. App. 2001). But see Dalury v. S-K-I, Ltd., 670 A.2d 795 (Vt. 1995) (finding "legitimate public interest" based on large number of people that "ride lifts, buy services, and ski the trails").

In December 2014, however, the Oregon Supreme Court rejected the traditional approach in an opinion which should certainly trouble organizers of extreme sport activities.

In Bagley v. Mount Bachelor, Inc., 340 P.3d 27 (Or. 2014), a young man was injured while snowboarding on the defendant's privately owned mountain. The snowboarder crashed while going off of a jump located in the "Air Chamber" in the resort's freestyle terrain park. The accident resulted in severe injury and permanent paralysis. See generally Park & Ride: Mt. Bachelor, Oregon., TransWorld SNOWboarding (Apr. 30, 2004), (for description of the Air Chamber.) The defendant moved for summary judgment, and won, based on a signed waiver. Oregon's Supreme Court reversed, however, finding that the unequivocal release signed by the plaintiff violated public policy.

Unlike many previous courts, the Oregon Supreme Court did not think it significant that the plaintiff could have negated all risks by not snowboarding at the defendant's facility. Instead, the court concluded that the resort owner was in a superior bargaining position because the plaintiff had "no meaningful alternative to defendant's take-it-or-leave-it terms if he wanted to participate in downhill snowboarding." Id. at 562.

The court's themes in Bagley merit attention. First, the snowboarder was injured in a terrain park, while unsuccessfully attempting a "human-made jump," and he alleged negligence in "designing, constructing, maintaining, and inspecting the jump." Id. at 548. The fact that the jump was constructed by the ski company was critical to the result. The court relied heavily on the ski company's duty of reasonable care "to avoid creating risks of harm to its business invitees." Id at 565.

This reasoning suggests that the result would have been different if the plaintiff had injured himself on a naturally-occurring hazard. Of course, since almost all ski resorts now include terrain parks in their list of attractions, this reasoning essentially establishes two separate classes of skiers and snowboarders: those who choose to ride manmade portions of the park and those who do not. Perversely, this division essentially immunizes the biggest risk-takers from the release of liability contained in the release agreement they are forced to sign.

In addition to applying premises-liability principles to undermine the ski resort's exculpatory agreement, Bagley also cited the high rates of participation in skiing and snowboarding. High rates of participation helped the court invalidate the agreement. The court observed that a ski resort is "open to the general public virtually without restriction, and large numbers of skiers and snowboarders regularly avail themselves of its facilities." Id. at 568. This fact, in light of the "limited number of ski areas that provide downhill skiing and snow-boarding opportunities in Oregon, and the generality of the use of similar releases among that limited commercial cohort," was ultimately central to the conclusion that the release in question violated public policy. Id. at 562.

In short, the combination of two factors the popularity of the snow sports and the added dangers presented by the creation and maintenance of terrain park obstacles led the court to conclude that the release of liability violates public policy. In essence, the court found it inequitable for the ski company to invite large numbers of people to a hazard it created, and then disclaim any liability for resulting injuries.

While Bagley can be viewed as an outlier, it may also signal a course correction in response to wider participation and increasing injuries in extreme sports. As participation in extreme sports becomes more common, we may see more courts viewing anticipatory releases like Oregon's Supreme Court, focusing less on the voluntary, recreational nature of the activity and more on the specific equities. This would obviously create greater uncertainty for the providers and organizers of extreme sport experiences and likely prompt new strategies for limiting their liability.

Future Releases

One way to limit the impact of decisions like Bagley would be to require a separate release for terrain parks and other man-made obstacles, similar to the registration requirements for amateur ski racing venues. How Do I Register to Race? Nastar.com. Such waivers have been upheld in the racing context. See Collins v. Schweitzer, Inc., 774 F. Supp. 1253, 1263 (D. Idaho 1991); cf. Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 898 (D. Colo. 1998) (finding that racing release violated public policy, but opining that "if the skiing were recreational in nature only, I don't think that the release would have been entered into unfairly since Rowan could simply have gone somewhere else to ski or chosen not to ski").

In other words, for skiing and snowboarding nearly ubiquitous in certain areas of the country separating the more "extreme" aspects of the sport may help insulate providers from liability for the injuries.

On the other hand, the Bagley rationale does not bode well for sponsors of all those extreme sports that rely heavily on manmade tracks and terrain. Virtually any motocross park, for example, is at least partially designed or constructed to add jumps and bumps. Skateboard parks often are designed to give participants smooth half-pipes and faux rails. Even bike trails can be designed or constructed in some respects to add challenges to already challenging natural terrain. And one brand new category of extreme sports military or adventure-style races is totally fabricated. Participants in these so-called "Spartan" events often face unreasonably tough running terrain and seriously dangerous obstacles like fires and barbed wire fences. Some of these participants are being seriously injured, and a few have died. Can lawsuits be far behind?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John L. Tate
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.