Sports Injuries – How to defeat a waiver of liability.

Most of my clients love to participate in sports. Some are weekend golfers, tennis players, horse back riders, skiers, bicyclist, runners, hunters, backpackers. Others participate in organized leagues of basketball, baseball or football. Regardless of the sport, most of us love to be active and compete! Personally, I love that adrenaline high that comes with athletic activity.

Have you noticed that more and more often these days, when you participate in an event, you are asked to sign a document often entitled “waiver of liability.” Why does the organizer of the event or activity ask you to sign such a document? Chances are, they are doing it at the instruction or suggestion of their insurance company or of the suggestion of a business organization.

sports injury photo

Two questions that I am often asked by clients is, 1) Am I required to sign such a waiver in order to participate in the activity? and 2) What if anything is the affect of my signing the waiver?

Let’s start the discussion with some simple definitions. A waiver of liability is a document that attempts to relieve an organization or person of liability or responsibility for another person’s injury. In theory, a waiver of liability will preclude injured parties from collecting damages for medical expenses, wage losses, and pain and suffering for injuries that they have sustained. For example if you participate in a bicycle race, you may be asked to sign a waiver of liability against the organizers of the race for injuries that you sustain during the race.

So let me do my best to answer the posed questions. First, should you sign the waiver. If you are able to participate in the event without signing the waiver, by all means, I suggest that option. If the organizers or owners require your signature before participation and you want to participate, I suppose you will need to sign the document. However, if an injury occurs, don’t think that the waiver is an iron-clad defense in your being able to recover damages for your medical bills, lost wages and pain and suffering due to someone else’s negligence.

Let me give you an example of a recent case that I handled. My client was a participant in “dressage”, i.e., horse jumping. Having grown up in Brooklyn, New York, I do not know a lot about horse jumping. But having read about Christopher Reaves (aka Superman) and his terrible horse-jumping accident that caused paralysis, I can imagine that being on the back of a horse jumping over fences has some inherent risk.

My client suffered serious personal injury when the horse that she was on fell on top of her. As I interviewed her at our first meeting in her hospital room, I asked her how the accident occurred. She told me that she wasn’t exactly sure but she was unable to control the horse. In that meeting I learned an interesting fact which helped us defeat the waiver and win the case. The waiver was clear and was one of the most comprehensive that I have seen in my thirty-plus years legal career. It acknowledged that dressage (i.e., horse-jumping) is a dangerous sport and that the stable would under no circumstances be responsible for injury as a result of participating in that sport.

But as I filed a law suit on behalf of my client I had a strategy which I knew would defeat the waiver. The facts of the case revealed that the stable had been notified that a neighbor was doing recycling on certain days. We tracked down the facts and found that the recycling occurred on the very day of the accident. What happens on recycling day? Well, there is often the sound of crashing bottles. That is what happened on the day of the accident. The crashing bottles had spooked the horses and caused the fall. The waiver was therefore deemed useless, and I was able to assist my client in recovering significant damages to cover her medical bills, lost wages and money for her pain and suffering.

Whether a waiver of liability is an iron-clad document, or not even worth the paper it is written on, depends on the facts. That said, go out and enjoy sports!

Nursing Home Liability

Many years ago when my father was in his late eighties and suffering from advanced Parkinson’s disease, my mother confided in her children, myself included, that she was no longer able to care for my dad at home. She asked us for permission to have Dad sent to a nursing home. Neither my brothers nor I felt we had the power to say no to my Mom since we no longer lived at home.

And so began the task that many of my generation are now facing, we searched to find an appropriate nursing home for a parent. However, in our case, the old expression “while man plans God laughs” came to bear. On the first weekend we explored nursing home options, our Dad passed away quietly in his own bed, surrounded by his wife and four sons.

Despite missing my dad and feeling terrible about his death, I felt blessed about the manner of his death. Let’s face it, many people do end up spending months or years in nursing homes. The type of these facilities span a broad spectrum. Some of the ones I have visited resembled exclusive resorts, while others fell far short of those standards.

I am often called by relatives about a family member who has suffered serious personal injury or an untimely death at a nursing home. Those of us who do this sort of litigation know there is a body of federal regulations – the Omnibus Budget Reconciliation Act of 1987 (OBRA) – and substantial case law and literature establishing rules and standards that nursing homes need to follow. While not determinative of liability, these standards help me determine whether the nursing home deviated (breached) standards of care, and proximately caused injury to a loved one.
Some aspects of the standard of care are outlined as follows:

Assessment: Everyone admitted or readmitted to the nursing home must undergo a thorough assessment to identify the resident’s needs and risk factors. That assesment is a document that we will obtain in the discovery phase of the case.

Planning: The assessment’s findings are used to develop a care plan specific to the resident’s needs. Again, after obtaining the assessment we can analyze whether or not the plan specifically was followed. If it was not, our case is strengthened.

Implementation: As with many plans, a plan is only useful if it is communicated to the staff and if the staff follows it. We often find that the plan, while written by administrators and initial social workers, is never communicated or implemented by the “line staff” (i.e., the staff who are involved in the day to day care of your loved one).

Reevaluation: Especially with elders, plans need to change and be reevaluated as medical conditions change. We often discover that some nursing homes sit idly by and never reevaluate patients or change treatment or care plans.

Communication: The staff and administration must be in constant communication with the nursing home resident, his/her physicians and the family, to continually evaluate needs or changing needs.

You might be surprised at the number of times we see that communication in a nursing home facility has not followed these standards of care. If you suspect there is a case of nursing home abuse, give us a call. We take abuse of elders very seriously.