Today on the Merchant of DIRTT podcast episode number 28. Do you have a waiver, you know, that thing everyone signs just before they register for your race? Of course, you do. And I'll bet it's perfect too. It has all that legal mumbo jumbo in it that talks about how racing is inherently dangerous and how they can't sue you if they smashed their face to a tree, I'll bet there is no other way we like it. Well, except the original 1 you found online. You know, the 1 you cut and pasted all the words from, make this 1. Other than that, it's a complete original. I'm sure to hold up in court. After all, all that legal mumbo jumbo is designed to protect you. Right?
Right? Uh-oh. Greetings. I am the recognator, Kyle Bondo, your professional business coach for race promoters who didn't major in business. It's I want to talk to you about waivers.
Having a solid liability waiver is vital to anyone promoting off road races. All off road sports aren't inherently dangerous and involve clear risks, but so is not having a well written liability waiver. Not only are waivers your first line of defense against personal injury lawsuits, but they remind you that as a race proneer is really your duty to avoid being negligent. And what do we mean by negligent?
Trying everything in your power to make a safe race where everyone has fun and no 1 gets hurt. But that's obviously not going to happen. There's no such thing as a race that's a 100% safe. And by making your racers sign a liability waiver, you require them to read and acknowledge that they assume the risk of injury that could result from your race. So you do your best to make your race safe and they acknowledge
that not all risk can be removed. And there is some level of risk they have to assume on themselves. However, It also reminds you that a waiver only covers you to a point. You might be thinking, what point is that? Well, it's the point where the waiver leaves you open to lawsuits. It's no mystery that waivers often contain
express consumption of risk language. This requires all racers acknowledge the risk before they participate. Seems pretty way forward. Hey, mountain biking. If you go at high speed on trails with sticks and rocks and mud and dirt, you could crash and hurt yourself. Hey, trail running.
You can you're gonna be running on sticks and mugs and rocks and dirt, and you could trip and fall or drop off a cliff or slam into a tree. Hey, orienteering. You're bushwhacking. You're running on the woods. You could fall into a hole, sticks and rocks and it goes on and on and on. All off road racing anytime you go off the beaten path is inherently dangerous. And a waiver gives you that legal right to say, wow,
I didn't know this was gonna be dangerous. I don't wanna race this. And that's the point. Your legal rights or your legal obligation to understand the assumption of risk that you by participating are voluntarily allowing yourself to be in potentially harm's way is upfront. No one's hiding it. No one's pretending there is any danger. That's the whole point to a waiver. Most races don't even encounter waivers till race day, where signing 1 is often a common requirement to race entry.
Become a very normal thing for racers to do. No waiver, no race. I mean, how many times have you gone to a race where they said, did you sign your waiver before you get to pay? You have to go over to the table and sign the piece of paper. I mean, how many times do people actually read that? I'll bet you if you ask questions about about a library your liability waiver. That most racers have no idea what's written on that piece of paper, which is unfortunate.
But you make them sign it in hopes that it will protect you from injuries resulting from ordinary race day operations, them tripping and falling, hitting a tree, whatever. But the waiver protects you because they're acknowledging that they're doing this their own behalf. They're voluntarily doing this. But does your liability waiver actually protect you in your business? You should probably know the answer to that question long before you ever hold your 1st race.
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Alright. So if you've asked yourself these questions about whether or not your liability waivers are protecting you. Or if you're just having problems with with waivers in general, here are a few things you should be aware of. When you go about creating liability waivers, you should keep these as kind of rules of thumb. Because when you go to create a liability waiver, you should at least have these 3 things in the back of your mind before you ever put pin the paper or seek a legal advice from an from an attorney. And just a disclaimer,
I'm not an attorney. So I'm a lawyer. I'm not a legal expert. So these are things that I've I've discovered through working with lawyers to develop waivers and creating waiver myself. And then sometimes waivers are created for you, and you have to understand
what limitations that a a waiver that's created for you has, especially with with waivers from, like, USA Cycling. You have to understand what those liabilities can and can't do for you to know your rights and know how you're protected and how you're not protected. So if you're doing waivers by yourself or you're getting a waiver from an organization, you should know where
their liability ends and yours begins. So these are the 3 things you should definitely have at the top of your head before you ever get started. Number 1, don't make it up yourself. In classic liability waiver plate cases, a racer injured while participating in your off road race will have a questionable liability claim due to the simple fact they signed your liability waiver. That is if your liability waiver is valid and enforceable.
Let me say that again. Those are 2 very important terms when it comes to liability waivers. Valid and enforceable. Most race promoters believe their waivers are written to prevent their racers from suing them. If and when they crash and injure themselves, You can almost expect there's gonna be some sort of lawsuit,
especially in this litigious in society we have for today. That when someone crashes, you're probably gonna get sued. I mean, surprisingly, few race promoters have liability waivers written in a way that that actually will protect them from a lawsuit. They use that cookie cutter version of the waiver they found online, or they use the waiver given to them by 1 of the race associations. This is the 1 size fits all approach. Liability waivers, depending on the state,
is a mixed bag of illegal issues. Few race brokers write their waivers specifically for their races, and fewer still consult an attorney about the language that should and should not be in their waiver. Why would they do that? Well, first off, attorneys are expensive. Cut and pasting legal mumbo jumbo from the Internet is cheap.
It's only when the race promoter is sued by an injured racer Do they understand how their own state's laws address the liability waivers, especially 1 they found on the Internet? Every year, race brokers find out just how much protection their poorly crafted waivers provide them. Their liability waiver is not foolproof. And your liability waiver needs to be your first line of protection against the lawsuit, so it has to be foolproof.
However, if you don't try to if you try to draft it yourself, you know, a bad waiver can provide an avenue from injured victim to sue your company and maybe in a way you didn't anticipate. Don't try to save a few bucks and leave yourself unprotected by trying to create a weak liability waiver yourself. Just think about the cost about an injury. Think about the injury itself, the pain, the suffering, the agony
about hurting yourself. Think about that just for a minute about how how pain and suffering can really be immobilizing. It can mentally mess you up physically, spiritually. Then imagine having to be carried out of the woods over maybe even a couple miles and how the agonizing the nature of the injury could be exacerbated despite having to move you out of an area. That's rugged.
Now you have to ride an ambulance, maybe even a helicopter to a medical center, where you're seen by doctors, you're poked and prodded and tested, They discover the injury and how to treat it. Maybe it's something simple like like a break or a spring. Maybe something complex. Maybe it's like a compound fracture or they gotta put pins and you gotta have metal casts and maybe even physical therapy. Maybe the difficulty of walking again might be involved. Or worse.
What is the head injury where you no longer can function? You can't speak your language. You can't read or write, maybe you lose an eye or an ear, or maybe there's some sort of sensory faculty that is removed because of your injury.
Now, take all that and think about all the dollar signs added to that, to the crew that goes into the rescue, that rescue you to the ambulance or helicopter ride to the medical center, to the doctors and nurses involved, and the tests, and the medical science that goes into saving you or protecting you or keeping you from losing a limb or a capability.
Think about all that. Put all that in dollar signs in your head. You're the many, many zeros, I think you could probably add to that. Now, think about a 1 hour session with an attorney to write a waiver. Probably gonna cost you about $300.
Now, if you compare the 2, which 1 do you think is cheaper? Writing the waiver yourself and then not being protected from an injury that you now have to pay out through whatever your insurance will cover and then everything else comes out of your business pocket or even more potentially, your own pocket. It could be your own house and your own car and your own assets that are in jeopardy because of 1 injury because you cut corners. Versus the $300 consult with an attorney to
write a waiver that protects you from gross negligence. Think about those 2 costs. That's why you don't ever write these things yourself. Okay. Number 2, don't race without knowing your state's law. In simple terms, liability waiver does 3 things for both viewing erasers. 1, it informs them that off road racing is inherently dangerous and involves clear risk. That's kinda obvious. Number 2, it limits their right to sue you in the event of injury. That's questionable depending on your state.
Number 3, it provides an assumption of risk defense that can be utilized by you in the event of a legal claim. That's like a legal tactic that a lawyer will take to get you out of the of the woods of a lawsuit because it'll it'll be the defense as The racer knew the inherent risks, signed the waiver, knew could this be dangerous, got hurt, therefore, my client is not responding. That's kinda how that works.
But if you think that by having a razor sign a liability waiver protects you from all liability, think again. A liability waiver by itself does not remove the race runner from actual liability. Does this mean that liability waivers are useless? No, not at all. Lending what liability waivers in most states are mixed bag illegal issues when it comes to enforcing them outright. Some enforce them. Some reject them while others review them very carefully before they pass judgment.
So just think of them as as evidence in a trial. A waiver gives you some legal grounds for defense. That's really what a waiver does for you. This means that the waiver you use in 1 state may not carry the same protections
in a neighboring state. That's important, especially if you're an off road race promoter that is moving from state to state or has races in multiple states. Now I'm from the DC metro area. So the DC metro area, a lot of times, race promoters have races in Virginia, have races in Maryland, may even have races in DC, and this Strictor Columbia themselves, maybe West Virginia, could go as far north as Pennsylvania, Delaware, maybe as far south as North Carolina. That's a lot of states and a lot of different laws.
So you have to understand that a waiver that was written specifically for the laws of the Commonwealth of Virginia is different than the laws written for the state of Maryland. See? They're that commonwealth in there. That's kinda through here. Right? Yeah. That's because Virginia is the commonwealth of Virginia. It's a state, but it's kinda not a state. I don't know. Go look at Wikipedia.
It's it's, you know, you'll you'll figure it out. Let's just easy to say that Virginia and Maryland, different laws. Therefore, the waivers can't be identical. What works for 1 may not work for another. You have to know this. You need to make it fit the criteria set by common law principles. And the liability laws of your given state, it means that you need to be intentional when writing a liability waiver. So if you're operating in multiple states,
or you plan on operating multiple states. Not only do you need to set up business entries in those states to protect you tax liability on But you didn't understand that how a liability waiver works in each state. Which means? Here's the here's the $10,000 answer here, the secret question. Right? Which means you need to go see a lawyer in any state you operate in to write that liability waiver.
A lawyer, in my case, the state of Virginia will write a liability waiver, different than a lawyer that works in the state of Maryland, and different than an lawyer that works in the state of West Virginia. So wherever you reside, the same kind of thinking needs to be applied. If you set up shop and do business in a state across the border, your liability waiver may or may not be used success successfully in that other state.
So just know that not all states are the same when it comes to liability waivers and how they look at them. Some states look at liability waivers and say, you can't sign your life away. You can't sign your rights away. And because you can't sign your life and rights away, a liability waiver is not an automatic dismiss dismissal of a lie of a lawsuit.
And because of that, racers have the right to sue you. They can't sign their rights away. Doesn't mean The liability waiver is not useful or piece of evidence in defense of you because you told your racer, hey, by the way, you could get hurt and the racer went, okay, and send your name away. Sign their name on the on the piece of paper and understand they could have got hurt, and then they get hurt. Then they sue you. You didn't tell me I could get hurt. Well, no. I've got evidence.
So just think about a liability waiver is not automatic dismissal of the charges. In some states, it could be. In most states, it's not. It's defense. But know that each state's different and if it's not written for that particular state, it might not be admissible evidence. So consider that when you're looking into a white writing, a correct waiver for where you operate.
Last but not least, number 3. Don't be surprised when you get sued. Unfortunately, being sued is part of being in the race promotion business. We all know that injuries are going to happen. And they're gonna be self inflicted. I'm gonna be myself inflicted. Well, the ratio's gonna go out there and hurt themselves. They're gonna fall. They're gonna crash their bike. Something's gonna happen really gonna be injured. But regardless of the liability waiver you have in place, an injured racer, although they sign this, There are a few that are still gonna come after you for damages.
They're gonna say that this is your fault. The fact that the race was built in this way caused their injury. It's just fact of life. Americans they like to sue, and people get hurt and races try to seek for damages.
So what do you do about that? How do you how do you survive the getting the suit part? Because it's gonna happen, just the way this business works. Well, according to Stice in Harperson, a Mid Atlantic law firm that specializes in liability law. They cite a study that claims that over 4,000,000 extreme sports injuries report it between 2002,011. And I'll have the link to this in my show notes. The point there is 4,000,000 extreme sport injuries reported
That's a lot. That's a lot of injuries. Now, they're talking mountain biking, snowboarding, bungee jumping, hang gliding, windsurfing, rock climbing. Mister, lots of different extreme sports. Not all these are racing sports, but extreme sports in general. And then 4,000,000 injuries. So just imagine as a race promoter, what you do for racing, what your disciplines are in, that the 4,000,000 easily include many injuries within your sport as well. And of those 4000000, 11.3%
of them were head and neck injuries. That's kind of scary. Of course, concussions, the most common. Think about head injuries and the concussions, there seems to be a very big awakening in how concussions even happen and what happens to the brain and the concussion. But 11%.
So 1 out of 10 of those is a neck and their head injury, with concussion being the most common risk among participants of all types of training sports, which is why in a lot of training sports, they wear helmets. That's just a no brainer. But this means that no matter how carefully you are at some point, someone's gonna get injured, during 1 of your races. Me 4000000 people. Think about it. If just 1% gets hurt, and they're in your they're gonna be in your race. It's not a matter of if someone could hurt your race, it's a matter of a win. Fortunately,
the the study that that cited by Stice and Harbertson Stated out of those 4,000,000 extreme sports injuries, many of them showed that the liability waivers were found to be valid and enforceable under common law principles, That's the good news. So here's the bad news. When we're talking about valid enforceable or culplanetary clauses, you know, in your liability waivers, that when these when these clauses violated public policy,
or the damage was the result of a will for a wanton conduct on the part of the defendant, that would be you, the race promoter. They are found not to be valid and enforceable. In other words, When the injury is a result of the race broker's gross negligence or deliberate misconduct, the liability waiver did not provide any legal protection.
So while a liability waiver does provide some basic protections, it doesn't mean that the race broker can just do or build whatever they want. If a race broker creates a course that is too dangerous, racers might be able to prove that the dangers encountered were beyond those that a reasonable person might consider being part of a normal race. Now take that very seriously. Let me say that again.
If a race promoter creates a course that is too dangerous, Now who decides what's this too dangerous and what's not too dangerous? Well, that razors might be able to prove that the dangers encountered were beyond those of a reasonable person. That's the key phrase right there. And a reasonable person might consider being part of a normal race. So if a reasonable person thinks that's dangerous, you could be held accountable.
Now think about a reasonable person. Who is that? Well, if it's jury, a reasonable person will be the people who don't understand extreme races and see extreme elements of a race that would be normal to people people like us who do extreme racing all the time might be considered insane
to a reasonable person. So take that into account Things like cliff edges, fast moving water, erasing waters, lightning going on, extreme heat happening down trees, that racers have to climb over rocky trails or the rocks are slippery or big rocks, off camp returns, or even steep distance could all be considered something most courts
could see is not part of a normal race. Normal courts being the reasonable people. The law has concerned itself with setting up standards that will encourage people to act with a reasonable degree of care when it comes to negligence. Allowing someone to determine ahead of time that they will escape any consequence or failing to exercise care would defeat the purpose of a legal standard. Think about that. They're talking specifically
about liability waivers, that you can't just put anything you want in a course and then throw up a liability waiver and say, well, you know, it was gonna be dangerous. You signed the waiver. I guess you should have known better. That's mountain biking. That's a venture racing. It's dangerous. No. That does not work. In the court of law, you cannot make
a crazy course a dangerous course that a reasonable person would go, well, I'm not doing that. And then say, I'm sorry you got hurt, but you sign a liability way. No. It does not work. And it does not work in a lot of cases and in a lot of states to allowing someone to determine ahead of time that they would, like, escape any consequences for failing to exercise care,
that's you, not exercising care, would defeat the purpose of a legal standard. But on the other hand, you know, 3 story ramps and big dirt burms might be completely normal to us or the freestyle mountain bike or motorcising event. That might be something that's expected in that event. Same could be said for the ultra trail runner covers a hundred miles of mountain trails. That could be considered normal. The cliff edge could just be part of what an ultra trailer runner wants in their race because it happens to go over a certain part of the park or over a certain mountain line. If a trail runner happens to fall off that cliff during that hundred mile run where clips are considered normal, can they sue the race runner? Unfortunately, for race runners, There is a high hurdle to jump when it comes to dismissing a waiver, but you have to go back to that reasonable person.
Now, Think about think about this. When we go to build trails, when we're out there building trails, 1 of the things they often say is trails for everyone. That means that you can't put in a trail in the place where everyone's riding and just make it crazy.
Super high jumps, big berms, big rock drops, you know, table tops, those kind of things. You just can't do that because Trails for everyone does not include extreme technical features, so the same goes for your race. If you want your liability waiver to work,
because you don't wanna be sued, if someone gets hurt, that you need to build a race that meets a reasonable person and reasonable person being someone off the street. I mean, you could have a jury of event erasers if you're an event race promoter. Maybe maybe you had an event eraser too in there. Chases are you won't. But let's just say that you build a race that's considered pretty mid tier. Your liability waiver is probably going to be just significant enough to protect you from a lawsuit
based upon the kind of evidence we're gonna collect for a case as you as the defendant. But if you get if you get crazy, If you do some things that are completely out of norm because you wanna be different, just know that there is inherent risk involved in your liability waiver not being enough to protect you in a court. So just understand that, that you don't wanna create something that's too dangerous.
And we all know what too dangerous is. We're not talking about, you know, oh, you gotta take all the danger out of racing. No. No. We're not talking about that at all. We're talking about danger that a reasonable person would consider absurd
to ride over, run over, paddle through. So class 4 rapids, with brand new people and a canoe, probably bad idea to happen in a race. Now do things happen in races here unexpected? Yeah. I was an adventure race a couple weeks ago. A squall came in down the James River, and a couple canoes flipped over. And these people were racing I think they were first timers. I think 1 boat was first timers, and the other boat had some people in it. Been racing before. But the James River's cold, and the squall's cold comes blowing in, and the canoe flips over, and people freak out. Coast guards call police come out, all that kind of stuff. Everyone's fine. Now, could those racers sue the race promoter because a squall came in and flipped their boat over? I don't think so. I mean, I'm not a lawyer, but I think this is a reasonable person would say, hey, the wind is blowing really hard and you're in a canoe. Canoes flip over? Didn't we get hurt? No. Inconvenience?
Sure. But say, someone got hurt. Could they sue? Hey, you should have known the windows in the blow. You start to put your legal hat on and start to think about, can I defend these actions in court? Can I defend the actions of the race promoter in court? That it was reasonable to think that someone could paddle a couple a 2 mile section in a canoe on the James River on a beautiful day. When it was sunny out and there wasn't anything going on. Yes. Then the wind came in and they flipped over.
Sorry. Stuff happens. And so I got hurt. That's tragic. And no 1 wants that. But can the race bounder be held liable? Well, that's a court to decide. Public opinion? You know, my personal opinion, I'd say no. I think that they knew it was inherently risky. They got in the boat. They're standing on the shoreline when the winds blowing. They know whether or not maybe this is so good
idea. Fortunately, Irish motors, there's a high hurdle to jump when it comes to dismissing a waiver outright. So are you gonna get sued? Probably. Someone's gonna get hurt in your race? Probably. You gonna have to defend yourself in court at some point in your racing career, your race promotion career? Probably, which is why you need to have a liability waiver.
Is written correctly, not something you copy and paste off the Internet that understands the state's laws when you operate in, and that you did your due diligence to create a course and produce an event that a reasonable person would be would consider all the parts in it to be that of a normal race. And now for some final thoughts. Always have a good waiver.
With good meaning a legal waiver that has been reviewed by a lawyer, as a race promoter, you should never do any event without having a liability waiver. It is the minimum amount of legal protection you can provide you and your company. Several racing associations do provide you with their version of a liability waiver, but remember that these waivers are normally 1 size fits all. Your state may not have the same legal protections that a race association in say Colorado has.
This is why you should always consult an attorney when dealing with legal issues such as liability law. And now you know. Our next episode, full time race promoters have learned the only way to make racing their full time gig is through the process of ABR. What'sABR? Always be racing. But what does a profitable ABR business model look like And how do you maintain or even improve your sales volume year in and year out? Find out on the next episode of The Merchants of Durb Podcast.
Well, the music means that's all there is for today. Thank you so much for listening, and I really appreciate you coming all the way to the end of the episode.
I've moved some things around within the show. Hopefully, maybe you haven't noticed, maybe you have. I've also been experimenting with Beth's Times to publish the episode. So if you'll notice that my publishing dates have kinda changed a little bit. Maybe I'll play around with that. If you liked what you heard today and you wanna hear more or you have a topic that you would like me in particular to cover, please reach out to me. I'm at merchants of [email protected].
Or if you have a quick little question or something that you would like me to answer, you can also find me on Twitter at Merchant's Under. If you are interested in keeping up with some of the behind the scenes stuff or maybe even some exclusive content, please go to merchant's underdirt.com/join
and sign up for reckonier newsletter, where you get exclusive things that other people don't get to see, other people don't get to read, and I usually I post their first before I post anywhere else. Until then, I hope you get a chance to out there and build better races, and I will see you on the next episode of the Merchants of your podcast. Take care.