This presentation looks at the differences between states on how they define gross negligence and how a gross negligence claim affects release law.

1. Gross
Negligence: It
exists, now
days seemingly
everywhere; can
you fight it with
paperwork?

2. SPORT AND RECREATION
LAW ASSOCIATION ANNUAL
CONFERENCE 2016
New Orleans, LA, March 25, 2016

3. MERRY MOISEICHIK, R.ED, J.D
UNIVERSITY OF ARKANSAS
JIM MOSS, ESQ
RECREATION LAW

4. What is
Gross
Negligence

5. We Found 4 Definitions for Gross
Negligence
1. Want of Scant Care
2. Equal to Willful and Wanton
3. Halfway between Negligence and Willful and
wanton
4. No Difference: Ordinary, Gross or Willful and
Wanton

6. California
…want of even scant care or an
extreme departure from the ordinary
standard of conduct.
City of Santa Barbara et al., v. The Superior Court
of Santa Barbara County, 135 Cal. App. 4th 1345;
38 Cal. Rptr. 3d 434; 2006 Cal. App. LEXIS 84;
2006 Cal. Daily Op. Service 775; 2006 Daily
Journal DAR 1075

7. Kentucky
Under Kentucky law, "wilful and wanton negligence"
is "substantially the equivalent of 'gross
negligence'
Dones v. Super Service Inc. 2006 Ky. App. Unpub.
LEXIS 389 (Ky. App. 2006)

8. New Jersey
Gross negligence is defined as
"conduct that comes somewhere
between 'simple' negligence and the
intentional infliction of harm, or, 'willful
misconduct.
Steinberg v. Oasis, 2014 N.J. Super.
Unpub. LEXIS 2594,

9. New Hampshire
New Hampshire law does not distinguish
causes of action based on ordinary
and gross negligence. "[T]he doctrine
of definitive degrees of negligence is not
recognized as a part of our common law.
Barnes v. New Hampshire Karting
Association. 509 A.2d 151 (N.H. 1986)

10. 44
Definitions of Gross Negligence
No levels
Want of Even Scant Care
Willful & Wanton Negligence
Between Ordinary & Willful &
Wanton

11. Releases Are Contracts
*Meeting of the Minds
*Acceptable for
Ordinary negligence
*Rarely Accepted for
Gross Negligence

12. Heiman v. Mayfield, 686 S.E. 2d 284 (Ga.
App. 2009)
Exculpatory clauses in which a business relieves
itself from its own negligence are valid and binding
in this State and are not void as against public
policy unless they purport to relieve
liability for acts of gross negligence
or willful or wanton conduct.

13. Hawaii
…to allow an exculpatory clause to
extend to gross negligence would
violate the public interest, rendering
the clause void.
Courbat v. Dahana Ranch., 141 P 3d
427 (Haw. 2006)

14. Releases
Are Void
in Some
States

15. States were Releases are Void or Subject to kinds of Acts
Release is
Void
Depends on
Activity

16. Those States where a
Release stops a Claim
for Gross Negligence

17. Claims for Gross Negligence
In some states where is no difference
between a claim for ordinary
negligence or greater than ordinary
negligence
Effectively in those states then, a
release stops a claim for Gross
Negligence

18. States where Gross Negligence Claims are Stopped

19. States were a release does not stop a Claim for
Gross Negligence
are in Green
3 States
allow a
release to
stop a claim
for Gross
Negligence

20. Kentucky
The Sixth Circuit has held that, under
Kentucky law, an agreement releasing
a race track owner from liability only
bars claims for ordinary or gross
negligence, and not for wanton or
willful negligence.
Cahill v. Earlywine Racing, 2008 Ky.
App. Unpub. LEXIS 590 (Ky. App.
2008)

21. 6th Circuit Court of Appeals
Under Kentucky law, one party to a
contract may agree to release the other
from liability for ordinary or gross
negligence.
Donegan, v. Beech Bend Raceway
Park, Inc., 894 F.2d 205; 1990 U.S.
App. LEXIS 735

22. Florida
Theis v. J.J.Racing Promotions, 571
So.2d 92 (Fla. App. 1990)
Deboer v. Florida Offroaders Driver’s
Association., 622 So. 2d 1124 (Fla.
App. 1993)

23. Illinois
Maness v. Santa Fe Park Enterprises,
700 N.E. 2d 194 (Ill. App. 1998)

24. Every Case
Release was signed for a
motorized race
All were either racers or
spectators at an event

25. No other Cases have been Found
We found no other cases in
any other state or for any other
sport or activity were a release
was used to stop a claim for
gross negligence

26. NASCAR Rule
If the state has
NASCAR the state
supports release
law