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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.
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.
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:
Additionally, a waiver of liability affecting a minor child is unenforceability and a parent cannot sign his or her child’s rights away.
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:
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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