Extreme Sports Challenge The Courts

Extreme sports are increasingly popular in the U.S., and participation is growing. "Extreme" means different things to different people, but participation is not only up in sports such as mountain biking and snowboarding. More people are bungee jumping, hang gliding, wind surfing and rock climbing. As more Americans become involved in hazardous recreation, the number of personal injuries is also rising especially among minors. With injuries comes litigation, of course, and the popularity of extreme sports raises challenging questions of liability.

Risky Business

A study presented at the 2014 Annual Meeting of the American Academy of Orthopedic Surgeons analyzed data reported to the National Electronic Injury Surveillance System (NEISS) to quantify injuries associated with extreme sports. The results were staggering, though not particularly unexpected. From 2000 to 2011, over four million injuries were reported for participants in all seven sports selected for study: surfing, mountain biking, motocross, skateboarding, snowboarding, snowmobiling, and snow skiing. Of these, 11.3% were head and neck injuries, with concussions the most common risk among participants of all types of extreme sports.

Virtually all participants in extreme sports voluntarily embrace the risks and thrills of going faster, higher and farther, but many enthusiasts also must pay for the privilege. Government agencies and private companies often charge admission to parks, slopes and tracks, and one of the common conditions of admission is the requirement that participants sign releases waiving their right to sue for injuries, including those caused by the provider's negligence. Although these liability waivers can be enforceable in some states under certain circumstances, outcomes are highly fact-driven and often unpredictable.

Waiving Liability for Extreme Sports

As a general rule, exculpatory clauses are valid and enforceable under common law principles unless they violate public policy or the damage was the result of willful or wanton conduct on the part of the defendant. Some states have created statutory exceptions to this general principle. See, e.g., La. Civ. Code. Ann. art. 2004; N.Y. Gen. Oblig. Law 5-326; see also Alaska Stat. 05.45.120 (excepting "special events" from prohibition against use of exculpatory agreements by ski area operators). However, agreements to limit liability for injury are strongly disfavored by courts. Therefore, a pre-injury release will only be enforced if, in clear and conspicuous language, it explicitly indicates the intent to release the provider from liability for injury caused by that party's own conduct or negligence.

Even well-drafted releases and waivers can be invalidated as contrary to public policy. Each jurisdiction can apply slightly...