Bicycle Ride and Race Liability Waivers: Are They Enforceable?
Each year, thousands of cyclists across the country compete in races, participate in charity rides, and take part in formal and informal group rides organized by local cycling clubs. The organizers and sponsors of almost all of these events require riders to sign liability waivers, also known as hold harmless agreements or pre-injury releases. These agreements are usually contained on a rider registration form that must be signed before a rider is allowed to participate in an event and state that the rider agrees not to sue the event sponsors, organizers, employees, and volunteers if the cyclist is injured during the event. As a frequent participant in charity rides and organized group events, I am often asked whether, and to what extent, these provisions are enforceable. As with many questions in the law, the answer is “it depends.” In Wisconsin, it is unlikely that a court would enforce such an agreement.
Wisconsin employs a unique, stringent analysis to liability waivers. First, Wisconsin requires that liability waivers must state expressly that the signer is releasing claims based on negligence. Second, the waiver must demonstrate that the signer contemplated releasing a claim based on the specific acts of negligence in question. In other words, the waiver must expressly set forth the kind of conduct that caused a person’s injury. Third, a liability waiver must be conspicuous and must be contained on a separate sheet of paper from a registration or sign-in form. Fourth, the waiver form must demonstrate that both parties possessed an opportunity to bargain over its terms.
Notably, while Wisconsin has not prohibited liability waivers outright, in the last 25 years, the Wisconsin Supreme Court has never found a personal injury liability waiver to be enforceable. The last time the Wisconsin Supreme Court examined these agreements, it ruled that a liability waiver that was part of a “guest registration” form for a swimming and athletic club was unenforceable because it was not on a separate form, did not expressly state the signer was waiving claims based on the risk of drowning, and because the signer did not have an opportunity to bargain with the facility over the terms of the agreement. In light of the requirement that parties must be allowed an opportunity to bargain over the terms of the waiver and that the waiver must be on a completely separate form, it is unlikely, although not impossible, that a Wisconsin court would enforce a liability waiver contained on a standardized cycling event registration form.
Other states have adopted several different approaches to analyzing these agreements. Some states will enforce liability waivers so long at they clearly state what is being waived. Other states outright refuse to enforce them or prohibit them in certain situations. Some states employ detailed analyses that examine the relative bargaining power of the parties and who has the greater ability to reduce the risk of injury. Other states will enforce liability waivers unless the subject matter of the contract involves an area of public interest. Almost every state using the “public interest” test has concluded that bicycling, even at the Olympic level, is not a matter within the public interest. As one court stated: “At some future date, when cultural changes produce Monday Night Triathlon, this court may well find itself hard pressed not to conclude exculpatory clauses signed by triathlon participants void as a matter of public policy.”
In light of the variety of tests utilized by different jurisdictions to evaluate liability waivers, it is not surprising that cases involving cycling events are not consistent across the country. However, certain common trends can be identified. Many courts have enforced liability waivers or refused to reject them outright as applied to organized professional and amateur racing events. In contrast, courts seem to scrutinize liability waivers more closely outside the context of competitive racing, such as organized charity rides.
Courts are also more hostile to liability waivers when the negligent conduct at issue is not part of the inherent risks associated with the activity or event under consideration. For example, a liability waiver will likely be enforced if a cyclist is injured after slipping on some gravel on a racecourse, colliding with another rider, or failing to negotiate a sharp turn. On the other hand, courts may find a liability waiver to be unenforceable if a cyclist is struck by an automobile during a race on what is supposed to be a closed course.
However, if the cause of the accident is obvious or reasonably foreseeable to a bicyclist, it is more likely that a court will enforce the agreement, even if there is clear proof of egregious negligence. In one case in California, the United States Cycling Federation allowed a novice rider to compete with top athletes in the 1982 World Trials to qualify for the 1984 Olympics. The novice, who was not accustomed to riding in a peloton, began weaving in and out of the group during a fast descent and caused a chain-reaction crash. No one was injured, but all of the elite competitors complained that allowing the novice to race with them was dangerous and that someone was going to get hurt. Despite these objections, the novice was allowed to continue racing. Six days later, during another fast descent, the novice again started weaving in and out of the peloton and caused a chain-reaction crash. This time, one of the leading competitors hit her head on the ground and sustained serious injuries, ending her Olympic dreams and cycling career. Despite clear negligence on the part of the race organizers in allowing the novice to continue to race with the top-tier riders, the court ruled that the injured cyclist could not recover anything because of the liability waiver she was forced to sign before entering the race.
In conclusion, there is no common consensus as to the enforceability of liability waivers as applied to recreational activities such as cycling. Based on Wisconsin’s strict rules for drafting these agreements, it is unlikely that a court in this state would enforce a liability waiver signed before a charity ride, group ride, or amateur race. Whether a particular agreement is enforceable in another state will depend on the jurisdiction in which the event takes place and the analytical framework followed by courts in that state. As a general matter, a release is more likely to be enforced if the rider is involved in a professional or elite amateur race, as opposed to a charity event open to the public at large. In contrast, a liability waiver is more likely to be found invalid if the nature of the injury suffered by the cyclist was outside the scope of the normal risk associated with the specific kind of cycling event at issue.
However, cyclists can expect to encounter liability waivers even in jurisdictions where they are not favored or outright prohibited. While liability waivers may or may not be enforceable in court, their primary function is to discourage an injured cyclist from pursuing a claim in the first instance.
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