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Inherent Risk: Should it be used in a Release - SRLA 2015

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The use of the phrase inherent risk in a release narrows the scope of the risks to be covered by the release.

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Inherent Risk: Should it be used in a Release - SRLA 2015

  1. 1. James H. Moss, JD Recreation Law www.recreation- law.com
  2. 2. In a release (waiver) you see the word “inherent” in front of the word “risk.” Why?
  3. 3. 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.
  4. 4. appreciation of the dangers and risks inherent in such activities,
  5. 5. I understand that certain risks are inherent in participation in the Event
  6. 6. Copyright 2015 6 I fully understand and appreciate the dangers, hazards, and risks inherent in the Activity,
  7. 7. I understand that any program of travel does involve certain inherent risks and dangers
  8. 8. Copyright 2010 8 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.
  9. 9. 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,….
  10. 10. 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.
  11. 11. I understand the activities are not without some inherent risk of injury.
  12. 12. 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.
  13. 13. 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
  14. 14. (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:
  15. 15. (6) "Inherent risks of equine activities" means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
  16. 16. (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,
  17. 17. So let’s look at what “inherent” risk means If you can find a definition
  18. 18. Copyright 2010 18 http://www.riskythinking.com/glossary/inherent_ris k.php
  19. 19. Copyright 2010 19 http://www.businessdictionary.com/definition/inherent- risk.html
  20. 20. Copyright 2010 20 https://www.ventureline.com/accounting- glossary/I/inherent-risk-definition/
  21. 21. Copyright 2010 21 http://www.alllaw.com/articles/nolo/personal- injury/skiing-accident-resort-liability.html
  22. 22. So what does this mean? The inherent risks of the activity were the basic part of the activity
  23. 23. 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
  24. 24. You cannot sue for the inherent risks of an activity If you engage in the activity you assume the inherent risks of the activity
  25. 25. Equine Law
  26. 26. No Horses have been sued since the Equine laws have been enacted Thank you
  27. 27. Colorado Equine Liability Act
  28. 28. 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. Copyright 2010
  29. 29. 29 The potential of a participant to act in a negligent manner… Copyright 2010
  30. 30. 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 Copyright 2010
  31. 31. Put the tack on wrong Picked the wrong horse Lead us down the wrong trail 31Copyright 2010
  32. 32. 32 Narrows the definition of the “risks” Only deals with the activities without man’s involvement in the activity Copyright 2010
  33. 33. Colorado Ski Safety Act of 1979 C.R.S. 33-44-101 (2014) 33Copyright 2015
  34. 34. 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. Copyright 2010
  35. 35. Statutes Expand the Definition of Inherent Risk If the purpose of the statute is to protect the industry the inherent risks are expanded
  36. 36. Copyright 2010 36 “Inherent Risk” is a smaller subset of all of the risks of an activity
  37. 37. Copyright 2015 37
  38. 38. Copyright 2015 38
  39. 39. You cannot sue for the inherent risks of a sport and that is the only thing you release protects against
  40. 40. 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
  41. 41. Using Inherent Risk Can eliminate the ability to file a motion for summary judgment and send each case to trial
  42. 42. IS A BAD IDEA IN A RELEASE
  43. 43. James H. Moss, JD Recreation Law

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