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