[Fot] Waivers

[Dale Oesterle]

The extra stuff in the waiver matters. A straightforward wavier waves negligence claims (not claims gross negligence, recklessness or intentional misconduct, depending on the state). A straightforward assumption of risk is an acknowledgement that a participant is willingly and consensually taking a higher than normal risk.  Both are accepted in the courts. Lawyers use the extra language in an attempt to add, subtly, more layers of liability protection when general law on waivers applies (i.e., there is no broader exemption statute such as those in Colorado for ski lifts).  Moreover, the contractual provisions on virus procedures should be in a separate contract — not in the waiver— with remedies specified for breaches.  The language just confuses people and makes insurance negotiations more complicated.

Dale Oesterle
- Sent from iPad

>> On May 17, 2020, at 4:52 PM, Gary Schneider <garygret at sbcglobal.net> wrote:
> 
> I understand and sympathize with the waiver text concern - certainly no insurance company will ever write an under-broad one - but it appears to be ~95% identical to the waiver we've been signing for many years. I had a 2014 BFR form deep in the files and scanned it to the attached PDF, along with the current waiver I just received from BFR Cindy. The footnote "2/09" seems to imply it goes back over a decade. I don't have the text memorized but I believe the RA waiver is the same form.
> 
> I've been a steward for maybe 20 years and our choice as race organizers has always been binary: all sign the waiver or no insurance is provided. The track owners have no more choice in this than we do. Although the language is draconian, it is a given we have accepted to participate in our sport. 
> 
> Gary
> 
> On Saturday, May 16, 2020, 10:23:16 PM CDT, Dale Oesterle via Fot <fot at autox.team.net> wrote:
> 
> 
> The waiver is legally over- broad [see, e.g., the “or otherwise language”] hoping a court will scale it back and apply it to the maximum extent the law permits.  [see the last section]. It is a drafting trick. Waivers usually cannot a apply to reckless or intentional misconduct (and in some states cannot apply to “gross negligence”).  Moreover, the waiver in section 1 gives an immediate defense to all defendants (“releasees”) on the basis that the signer “fe[lt] unsafe” (whatever that means) at some time before any injury and still participated [or did not give notice]. This is a trial lawyer’s delight and, at minimum, will cause defense counsel to delay settlement until the edge of trial, running up litigation expenses, until every statement of the plaintiff pre-injury has been collected and parsed.  If you sign this, do not talk to anybody (even in jest) about race or track conditions till your car is on the trailer and off the premises.  Other language gives a defense based on your non-disclosure of any virus symptoms; if you cough or have nausea (probably nerves and a crummy hot dog) you had better tell race organizers and they will have no choice but to escort you out.  
> 
> Dale Oesterle
> - Sent from iPad
> 
> 
> 
>>> On May 16, 2020, at 1:30 PM, John Styduhar via Fot <fot at autox.team.net> wrote:
>> 
>> The Blackhawk Farms liability waiver is worth a review and comment by one of our  FOT racing attorneys.  Not  your standard form we never read. 
>> 
>> On Fri, May 15, 2020 at 4:43 PM Gary Schneider <garygret at sbcglobal.net> wrote:
>> VSCDA is still planning on the Blackhawk Classic June 19-21. Blackhawk is opening May 30 and I've been in touch with the track and the race chair.
>> 
>> Also the Midwestern Council Driver's School at BFR is firm for July 4, VSCDA & SCCA participants welcome.
>> 
>> Gary Schneider
>> Midwestern Council Chief Steward for Blackhawk Classic
>> 
>> On Friday, May 15, 2020, 2:23:39 PM CDT, John H. Hasty via Fot <fot at autox.team.net> wrote:
> 
> <BFR Adult single sided waiver smaller.pdf>
> <2014 BFR Waiver.pdf>
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