inherent risk: should it be used in a release - srla 2015

James H. Moss, JD

Recreation Law

www.recreation-law.com

In a release (waiver)

you see the word

“inherent” in front of

the word “risk.”

Why?

Each participant in these activities should realize that there are risks and dangers inherent in them, and also in the training for, participation in, and travel to and from such activities.

The undersigned hereby acknowledges that participation in outdoor programs and recreational activities involves an inherent risk of physical injury and assumes all such risks.

appreciation of the dangers and risks inherent in such activities,

I understand that certain risks are inherent in participation in the Event

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I fully understand and appreciate the dangers, hazards, and risks inherent in the Activity,

I understand that any program of travel does involve certain inherent risks and dangers

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There are inherent risks involved with this ACTIVITY, including but not limited to

____________________________and I choose to voluntarily participate in

this ACTIVITY with full knowledge that said ACTIVITY may be hazardous to me and

my property.

I realize that there may be inherent risks to my health or wellbeing as a result of my participation in the Activities, which Xavier University can neither anticipate nor ameliorate. Such risks include but are not limited to any risk inherent in these types of Activities,….

Each participant in these activities should realize that there are risks and dangers inherent in them,….

The undersigned hereby acknowledges that participation in athletic programs and recreational activities

involves an inherent risk of physical injury and assumes all such risks.

I understand the activities are not without some inherent risk of injury.

However, participants and parents/guardians of minors registering for the race, programs/activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities/programs.

The word inherent is

found in statutes

concerning the risks

of outdoor recreation

activities

However in statutes it is used to expand

the definition of the risks

(f) "Inherent risks of equine activities" and "inherent risks of llama activities" means those dangers or conditions which are an integral part of equine activities or llama activities, as the case may be, including, but not limited to:

(6) "Inherent risks of equine activities" means those dangers or conditions which are an integral part of equine activities, including, but not limited to:

(a) Except as provided in subsection (b) of this Code section, the owner or operator of any fishing location, or any other person, corporation, group, partnership, or other entity, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of fishing, including but not limited to drowning,

So let’s look at

what “inherent”

risk means

If you can find a definition

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http://www.riskythinking.com/glossary/inherent_risk.php

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http://www.businessdictionary.com/definition/inherent-risk.html

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https://www.ventureline.com/accounting-glossary/I/inherent-risk-definition/

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http://www.alllaw.com/articles/nolo/personal-injury/skiing-accident-resort-liability.html

So what does this

mean?

The inherent risks of the activity were

the basic part of the activity

If you removed the

inherent risks you

destroyed or changed

the nature of the

activity

But for the inherent risks the activity

would not be

You cannot sue for

the inherent risks of

an activity

If you engage in the activity you assume the inherent risks of

the activity

Equine Law

No Horses have been sued since the Equine laws have been enacted

Thank you

Colorado Equine Liability Act

28

(f) "Inherent risks of equine activities" and "inherent risks of llama activities" means those dangers or conditions which are an integral part of equine activities or llama activities, as the case may be, including, but not limited to:

(I) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;

(II) The unpredictability of the animal's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

(III) Certain hazards such as surface and subsurface conditions;

(IV) Collisions with other animals or objects;

(V) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.

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The potential of a participant to act in a negligent manner…

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30

That is an expansion of the “inherent risk” of a riding a horse

It covers a person or a human’s interaction with anything not an inherent risk

So the inherent risk has been expanded by the statute

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Put the tack on wrong

Picked the wrong horse

Lead us down the wrong trail

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32

Narrows the definition of the “risks”

Only deals with the activities without man’s involvement in the activity

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Colorado Ski Safety Act of 1979

C.R.S. 33-44-101 (2014)

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34

"Inherent dangers and risks of skiing" means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or

may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and

machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and

collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural

or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

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Statutes Expand the

Definition of Inherent

Risk

If the purpose of the statute is to protect

the industry the inherent risks are

expanded

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“Inherent Risk” is a smaller subset of all of the risks of an activity

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You cannot sue for the inherent risks of a

sport and that is the only thing you

release protects against

In fact by using the

term inherent risk

you defeat the

value of a release

The jury is the trier of fact that decides if a

risk is inherent in the sport

Using Inherent

Risk

Can eliminate the ability to file a

motion for summary judgment and send each case

to trial

IS A BAD IDEA IN A RELEASE

James H. Moss, JD

Recreation Law