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Extreme sports … worth the (legal) risk?

Published On: Dec 13 2013 09:09:43 AM AKST
Updated On: Dec 13 2013 11:00:38 AM AKST
Skiing ski resort slopes

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By attorney Mitch Panter, Special to THELAW.TV

Winter is upon us. And with it come holiday cheer, family reunions, and the peak of the extreme sports season. Winter extreme sports include skiing, snowboarding, snowmobiling, snow skating, and ice climbing. Many of these extreme sports were made popular by the X Games, a new age Olympics of extreme sports competition on ESPN. Extreme sports present real danger and it is that very real risk that makes extreme sports so enticing to participants and spectators alike. However, extreme sports carry with them a high risk of injury and possibly even death. In spite of these risks, athletes continue to pursue these types of sports in increasing numbers. As extreme sports grow in popularity, new questions for their participants arise.

When extreme risks manifest and participants are injured, who is responsible?

Athletes who compete in extreme sports know that by participating, they are at risk for injury or death. In the extreme sports arena, actions or conditions that might otherwise be viewed as dangerous are often an accepted and indispensable part of the sport itself. Sponsors of extreme sporting events owe extreme sports participants a duty to refrain from increasing the inherent risks of the sport. Participants are charged with knowledge of the inherent risks of the extreme sport choose. In other words, they assume those risks, and a sponsor would not be liable to the participant for those inherent risks.

However, the participant's injury risk should not include that caused by the negligent acts of the extreme sports' sponsors or providers. If an extreme sporting event sponsor or provider increases the risk of injury beyond that inherent in the sport, liability may be imposed because the sponsors or providers exercise control over conditions under which the participants engage in the sport. The participant's voluntary decision to face the risk inherent in an extreme sport is not a complete bar to recovery, but rather results in a form of recovery based on comparative fault. Under comparative fault, the responsibility of both the participant and the sponsor or provider is relevant, and damages will be apportioned between the parties.

What if the extreme sport participant signed a waiver of liability?

Before an athlete competes in an extreme sporting event, the athlete will usually be asked to sign a liability waiver that contains language absolving the sponsor or provider of liability for its own negligent acts. This liability waiver, in turn, may bar an athlete from imposing liability on a sponsor or provider for any injuries the athlete may sustain as a result of a sponsor's or provider's negligence. In some states, if the participant suffers an injury as a result of the sponsor's/provider's negligence, despite the signed waiver, the sponsor/provider should not be able to escape liability, based on public policy, and comparative fault may apply.

I'm not a professional athlete, but I participated in a sporting event and signed/agreed to something saying that I would not hold the sport provider responsible for any injury, what can I do?

You may have agreed to a waiver of liability that is intended to contractually release the sport provider of any liability for injury. The fact that you have agreed to the waiver does not necessarily mean that you've forfeited your rights. If you must either sign or agree to such a form to participate in the activity, a court may hold that your waiver is not really voluntary and thus not valid. Even if the court recognizes the waiver, the waiver might not mean that you are giving up your right to sue entirely, if the injury resulted because of intentional or reckless behavior, you may be able to seek damages.

Sports are meant to be fun. But, if you or a loved one is injured during a sporting event, you may want to contact a lawyer for advice.

The author, Mitch Panter, is a Miami, Fla., personal injury attorney at the firm Panter, Panter & Sampedro, P.A. You can watch hundreds of videos featuring the attorneys at Panter, Panter & Sampedro, P.A., answering frequently-asked questions about injury law.