Some activities are so inherently dangerous that people are assumed to have “assumed the risk” of injury simply by engaging in that activity.
But operators of car racing and go-kart centers usually take no chances of being held liable for an accident. Instead, they require customers to sign liability waivers that absolve them from responsibility for an injury or an accident – even if the race track was negligent.
Law students spend endless hours debating whether such liability waivers are enforceable. However, this past Sunday, the inquiry became more than academic.
The Las Vegas Sun has reported a client and instructor were killed on February 12, 2017, when a client driving a Lamborghini at SpeedVegas lost control and crashed into a concrete wall protected by car tires. The instructor was in the passenger seat at the time.
SpeedVegas is an indoor racing facility that allows customers to drive exotic cars such as Lamborghinis, Ferraris, and Porsches around a 1.5-mile track at high speed (with no speed limit).
It is important to stress that it is not apparent yet what caused the crash or who was responsible. The Nevada Occupational Safety and Health Administration is currently investigating.
The crash is a reminder, however, that people need to think about the waivers they sign before they simply sign a form without reading it. Liability waivers are legally enforceable in Nevada -- including waivers for cases arising from ordinary (as opposed to "gross") negligence.
The difference between “ordinary negligence” and “gross negligence” in Nevada
Negligence is the failure to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances.
Ordinary care is that care which persons of ordinary prudence exercise in order to avoid injury to themselves or to others.
Gross negligence, on the other hand, is more than simple inadvertence. It is very great negligence or the absence of even minimal care.
For instance: if a go-kart employee did not notice that a tire had a leak that would most likely be ordinary negligence. But if the employee was supposed to check the tires and simply did not do it, a jury might find that the failure to do so constituted gross negligence. A lawsuit in Nevada for a go-kart accident is usually based on a negligence or gross negligence theory.
SpeedVegas' liability waiver (posted on its website under “terms and conditions”) is fairly typical. Under its terms, patrons agree that SpeedVegas is not liable for any loss or damage on account of injury to people or property or resulting in death, even if caused by ordinary negligence.
When Else is a Liability Waiver Unenforceable in Nevada?
A liability waiver / assumption of risk contract is not enforceable in Nevada if purports to relieve someone of liability for gross negligence, recklessness or intentional acts. Such a waiver is considered against the public policy of the state of Nevada.
In Nevada, an assumption of risk / liability waiver will also only be considered valid if:
- It can be easily understood by the average person;
- Its terms are not hidden in the fine print;
- The important provisions are not otherwise buried; and
- The waiver does not excuse more than ordinary negligence.
Additionally, a waiver of liability affecting a minor child is unenforceability and a parent cannot sign his or her child's rights away.
What you can do to stay safe…
The good news is that Las Vegas amusement park and racing tracks have a generally excellent safety record. But accidents do happen.
Short of not engaging in activities that require liability waivers, steps you can take to keep yourself include:
- Check the safety record of the operator. Search engines are your friend. Search for accidents at an amusement park or racing track before you go. Read the reviews.
- Obey all the safety rules. Failing to obey the rules could give the race track operator an excuse to deny responsibility for an accident.
- Read the waiver! If you are not comfortable with it, do not sign it.
- Ask what the site's insurance covers. (SpeedVegas, for instance, notes that the cost of its courses includes insurance. However, it does not specify the conditions or limits or whether it is only good to the extent the waiver liability does not apply). If possible, ask for an answer in writing.
- Make sure your medical insurance is up-to-date. Even if you ultimately prevail in a claim, it may not be for a long time. Having a good medical insurance policy will make sure you can receive adequate care in the event you are injured.