Liability Waivers and Vermont Supreme Court Decision

[tombuch 0]

From time to time we discuss liability waivers and current legal decisions that may affect the way skydiving waivers are interpreted. There was a recent ruling by the Vermont Supreme Court in a case involving an experienced motorcycle rider who was injured at a race track, and who then sued the track, in spite of having signed a release with language very similar to that used in skydiving waivers. The Vermont Supreme Court upheld the waiver. See the decision at http://170.222.4.25/supct/current/op2008-168.html.

It is important to understand that this recent decision applies only in Vermont, but it does give a good sense of how a court views a waiver, and it is interesting reading on a rainy Saturday morning.

A newspaper article that overviews the case is available at http://caledonianrecord.com/Main.asp?SectionID=1&SubSectionID=145&ArticleID=44726 and is copied below.

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DERBY - The Vermont Supreme Court has ruled that Vermont Motocross Association and the owner of Rider Hill in Derby are not liable in a 2002 accident that left Clint Provoncha a paraplegic. In March, the high court upheld a summary judgment issued in Orleans Superior Court which said that Provoncha waived his rights to sue when he signed a race day entry form the day before his accident.

The high court justices outlined the case in a light most favorable to Provoncha.

Provoncha was one of 300 members of the Vermont Motocross Association, which holds its races on the 15-acre Rider Hill property owned by David and Lucille Driver. Only VMA members are allowed to race at VMA events at Rider Hill. Provoncha had been a member for more than 10 years.
Rider Hill uses flaggers to alert riders in the case of an accident.

"Prior to the date of his accident, Mr. Provoncha had formed the opinion that the flagging at Rider Hill was inadequate," the justices wrote."His opinion was based on his claims that VMA used young people as flaggers, and used incompetent flaggers who were not alert or looking in the right direction, or who didn't display flags promptly when riders fell off their motorcycles.
Notwithstanding his belief that the inadequate flagging increased the risk of injury to participants, Mr. Provoncha continued to race at Rider Hill," the justices wrote.

The accident occurred July 7, 2002. "During pre-race warm-ups for the expert class event, Mr. Provoncha was ahead of the other riders when he lost control of his motorcycle on a jump and fell off his bike. As he was getting up to get out of the way, another motorcycle came over the jump and struck him. ...
"At the time of the accident, there was a flagging station immediately adjacent to the jump that was manned by a young person. No warning flag was raised after Mr. Provoncha fell in order to alert other riders behind him that he was down," the justices wrote.

Provoncha had signed a membership form, a race day entry form and a release and waiver of liability form before the race. The race day entry form states that the person who signs the form agrees to hold harmless the VMA, the racetrack owners and everyone involved in putting on the race "from any loss, damage or injury" in a risky sport.

Clint and Heidi Provoncha filed a claim in Orleans Superior Court in 2005, saying that the VMA and David Driver negligently caused his injuries because of the flagging and also because they did not provide prompt medical attention. The VMA and Driver sought summary judgment based on the documents Provoncha signed, which the superior court judge granted. That led to the appeal.

The justices cited other cases involving waiver forms for other high-risk sporting venues, including ski areas. Associate Justice Denise Johnson dissented, saying that the race day entry form is ambiguous and does not provide a waiver for the VMA and Rider Hill's owners.

Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

[NovaTTT 1]

Interesting article and case, Tom. Thanks for posting.

As a related aside, there was a posting within the last year of a "bulletproof waiver" that had been drafted by an attorney in .... Wisconsin, if I recall correctly. Did anyone get a copy of that?

"Even in a world where perfection is unattainable, there's still a difference between excellence and mediocrity." Gary73

[Skwrl 56]

Having drafted a ton of waivers myself, I am always curious to see anything that claims to be "bullet proof".

It unfortunately varies from jurisdiction to jurisdiction. (For example, you might end up in trial over whether an instructor's actions constituted "gross negligence" even if "ordinary negligence" is validly released, since some states don't let you release claims for future actions constituting gross negligence...)

If anyone has it, I'd love to see it for my own education...

/Does not like lawyers.
//Yes, I am full of self-loathing.

Skwrl Productions - Wingsuit Photography

Northeast Bird School - Chief Logistics Guy and Video Dork

[zipplewrath 1]

Yeah, every lawyer I ever talked to said there is no such thing as "bullet proof". Most didn't feel a waiver was particularly useful, for either side. You need a friendly judge, or a friendly jury and the other guy has to look like a bigger idiot than you.

This case in particular seemed to hinge to some extent on the fact that the guy knew the situation he was now complaining about exsited. Despite that, he chose to sign the waiver, went out on the course, then seeing that these conditions existed, WENT OUT AGAIN! Who's the bigger fool, the fool, or the guy that follows the fool?

Booth supposedly hired a lawyer to research the subject and the guy came back with the conclusion that the best defense that DZ's have is merely asking the question "did you willingly decide to jump out of a perfectly good airplane?" Apparently the jury stops listening after that.

[Skwrl 56]

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Booth supposedly hired a lawyer to research the subject and the guy came back with the conclusion that the best defense that DZ's have is merely asking the question "did you willingly decide to jump out of a perfectly good airplane?" Apparently the jury stops listening after that

I'm not a litigator, but I could see that working pretty well if the jumper is, well, still alive and capable of being deposed (or put on the stand). The problem is when it's the widow bringing suit on behalf of the orphans... Same exact situation from our perspective, different emotional dynamic in the courtroom...

The trick, of course, is to get it knocked out long before it gets to trial in a motion to dismiss or a summary judgment motion.

The way I've written my waivers, I make a point of basically putting them in REALLY plain English. (Having them sign something that literally says, "I know I could die... I'm willing to take that risk...").

The problem is that if you read the Vermont case, it's a judge who is thinking like a lawyer, not how a non-lawyer would think of the release. (So, for example, you end up with a whole discussion about whether it needs to state the word "negligence" in order to release negligence claims). When you get into that territory, you're dealing with magic words that the court wants to read, which results in releases full of archaic and dense language that only litigators read. People end up signing stuff they only mostly understand.

If you think about it, that's counter productive - you should be able to write a release that the average high school educated 18 year old can read and fully understand. It shouldn't be full of the "boilerplate" language that really hasn't changed since the early 1900s... But when courts get excited about magic words and phrases, you need to put the magic words and phrases in to be safe.

Skwrl Productions - Wingsuit Photography

Northeast Bird School - Chief Logistics Guy and Video Dork

[speuci 0]

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Having drafted a ton of waivers myself, I am always curious to see anything that claims to be "bullet proof"

Agreed, no contract is bullet proof. Anyone with money can spin-up all but the most frivolous of litigation and force a resturctuing settlment. That said, the more a contract is tailored to cases such as this, the less likely any lawyer will be to represent an injured party on a contingent fee basis.

Hopefully DZs (and their attorneys) will incorporate some key takeways from this case into their waivers.

1) Specifics rather than general - explicitly waive negligence, and describe what sort of negligence is being waived (failure to maintain/fly plain, failure to maintain/rig gearing)

2) Properly outline risks, seek to clarify that skydiving is Not for the general public.

While this case sets precedent only in VT, it incorporates CA public policy analysis ~ as its fairly apposite to our sport, it may hold sway in other states.

//Not legal advice - just good sense

[MakeItHappen 15]

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See the decision at http://170.222.4.25/supct/current/op2008-168.html.

What I don't get is why the court can make a summary judgment on this.

Can some lawyer-type explain this?

If you make a case and demand a jury trial, how and why can a judge come in and make a summary judgment?

Is there something about whether an issue is about a point of law v. what the evidence shows?

.

.
Make It Happen
Parachute History
DiveMaker

[Skwrl 56]

I can't find Vermont's Rules of Civil Procedure on line (at least without spending more than the 2 mintues I went looking), but I suspect they are similar to the Federal Rules.

Given that and that I'm not a litigator (and Civil Procedure was my worst grade in law school), I'll give an off the cuff answer.

One of the basic rules to understand is that juries determine "facts" not "law". (Another way to say that is they apply the law to the facts, but the judge determines what the law is). That's true whether it's a jury trial or a bench trial (a trial with just the judge).

Basically, you make an SJ motion when there's no material facts in dispute, so you are seeking a ruling on the pleadings and any depositions and interrogatories.

So here, it was probably the case that the injured guy and the track weren't disputing any of the facts of how he got injured. Instead, they were basically saying, "even if all of the agreed upon facts were seen in the light most favorable to the injured guy, as a matter of law, he loses."

And that makes sense - if the waiver is valid, he has no claim worthy of going to a jury. If the waiver is not valid, he would have a claim that could go to a jury.

Skwrl Productions - Wingsuit Photography

Northeast Bird School - Chief Logistics Guy and Video Dork

[speuci 0]

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IBasically, you make an SJ motion when there's no material facts in dispute, so you are seeking a ruling on the pleadings and any depositions and interrogatories.

Hmmm.. CivPro was a while ago for me too and not a great class for me, but I remember summary judgement being a hotly contested mechanism for judicial efficiency in the face of overloaded court dockets.

There might be factual issues in dispute, but the judge might conclude that no reasonable jury could rule X way under the facts at hand, and dispose of the case one way or the other.

I.e I sue you and say that you beat me up (my fact), and you state that you were out-of-state and produce video footage corroborating such statement (your facts). Judge might dismiss if my fact is necessary for my case as my facts viewed against yours leave no 'reasonable' basis for mine to be true as determined by a jury.

[chuckbrown 0]

Summary judgment is appropriate where there are no material facts in dispute, and the moving party is entitled to judgment as a matter of law. In other words, both parties agree on the facts, in which case, the judge applies the law to the facts and makes his decision. If there are any disputes about a material fact, summary judgment is improper. In a jury trial case, the jury alone makes the decision on who to believe where there is a factual dispute. That's the point of a trial, to determine the credibility of the conflicting evidence. Where there's no conflict in the evidence, a trial is unnecessary and the judge will decide who the law fits the facts.

If a judge doesn't believe a jury could rule in any particualr manner based on undisputed facts, thats a decision for after the trial (in case the jury misapplies the law). It's call JNOV. I'm too lazy to look up the Latin, but it roughly translates as "judgment notwithstanding the verdict."

Juries decide factual disputes, judges decide questions of law.

I do some litigation.