Many facilities—especially those involving sports or physical activities—require patrons to sign a premise liability release form. The purpose is to absolve the facility of any liability should an injury occur on their property. When injuries DO occur, many people think they don’t have a case because they signed the release form. But, depending on the injury, this is not always correct.
Oregon Certified Both Trainers and Facility
One of Don’s cases involved a woman who had $765,000 in medical bills and is permanently disfigured because of unsafe conditions and improper training by an instructor of a basic motorcycle safety-training course. An active, 45-year-old woman, “TC” had never ridden a motorcycle before and used state certifications as her guide in selecting a course. Although both the location and instructor were certified by the state, the range did not meet safety standards and the instructor’s directions led to her crash. She was left horribly disfigured with massive medical bills and still faces the possibility of having her leg amputated. She is also unable to work as she had before the crash.
Despite having signed a liability waiver, she won her case against the Oregon Department of Transportation, Oregon State University, and the Team Oregon Motorcycle Safety Program (the defendants).
Why the State and Program Were Liable for TC’s Injuries
The defendants had designed and maintained a motorcycle training range in Roseburg, OR to conduct their Basic Rider Training classes. They directed TC, a novice motorcycle trainee, to ride on a non-standard training range that was next to an unnecessary fixed concrete hazard. It was her crash into this hazard that caused her catastrophic injuries.
1 The overall training area (“range area”) was smaller than required and included an extremely dangerous concrete hazard
Defendant Team Oregon’s manual specifies that “the overall range area should be approximately 200’ x 300’ and be paved and free of potholes and other hazards and obstacles.” Their Roseburg range area was smaller than 200’ x 300’, and it was not free of hazards and obstacles. It contained a fixed concrete hazard on the southern side of the range. The size, shape, location, and material of the hazard created an extreme and foreseeable danger to beginner motorcycle trainees.
2 The range layout markings were non-standard
Team Oregon’s standards, which reflect national standards, require a 120’ x 220’ painted layout within the 200’ x 300’ overall range area. Laser mapping revealed that the Roseburg range layout is both too short and too narrow. The length is nearly 10’ shorter than the standard. The width is 15’ f (12.5%) narrower than the standard. Shortening the length and width of the range area makes many of the exercises more difficult for novice riders.
3 The range did not have a sufficiently large and hazard-free “runoff” area
Many of the exercises that trainees were required to perform involved driving motorcycles outside the painted range markings and into the runoff area. Even novice trainees were required to ride dangerously close to the fixed concrete hazard.
4 TC was injured when she was instructed to use this unreasonably dangerous range
On May 30, 2015, the instructor told TC, who had never operated a motorcycle before that day, to perform a series of exercises on the unsafe range. TC and the other trainees completed introductory exercises, all of which were to follow specified procedures with defined routes, instructor locations, and instructor signals. Then, they began “Exercise 9,” which started by having the students ride in a roughly rectangular path around the inner range layout. Halfway through, they reversed direction—a maneuver that required the novice riders to make a much tighter turn than in any previous exercise. Shortly before the collision, an instructor had told TC privately that she needed to speed up or she would be cut from the class. An instructor stood in a non-approved location and used non-standard hand signals that TC understood to require her to go faster during the reversal procedure. TC had to turn her head to look at the out-of-position, motioning instructor, which caused her to momentarily take her eyes off the concrete hazard as she increased her speed. TC did not turn tightly enough, and collided with the concrete hazard.
TC would not have been hurt if:
- Defendants had provided a safe range that complied with standards and did not have a dangerous concrete hazard on the side of the range. (During the course of this litigation the concrete hazard was removed.)
- The instructor had followed the program’s own rules and stood in the correct locations, used only approved hand signals, and not told TC she needed to go faster or be cut from the class.
The Extent of TC’s Catastrophic Injuries
1 Initial medical treatment
TC suffered life-changing injuries. Her initial diagnoses included a transection of her femoral artery, a grade IIIC open femur fracture, a right lateral tibial plateau fracture, and compartment syndrome in her right leg.
TC has since undergone numerous surgeries and procedures, which would require pages to describe, and I have omitted even a summary of those here. Among other injuries, TC suffered rhabdomyolysis requiring dialysis, required skin and bone grafting, and continues to suffer from drop foot.
TC’s doctors continue to discuss the need for additional bone-grafting surgeries or possible amputation of her right leg, due to chronic infections from the non-union of the femur, resulting in severe limitations. TC still holds out hope that she will see gains in her healing, although her orthopedic surgeons and her neurologist are not as optimistic.
TC is the sole caretaker for her autistic son, who has now had to take on the responsibility of caring for her in some ways. She is self-employed, and has had to turn down jobs because of the physicality required. TC has to walk with a crutch, and keeps a wheelchair in her car in case she gets tired. She uses a walker in her own house because she can’t carry anything that requires two hands (due to the crutch). When in public, TC is subjected to people staring at her deformities.
Bottom Line: The Liability Release was Not Enforceable
One of the issues in TC’s case was that ODOT, OSU, and the Team Oregon Motorcycle Safety Program required, as a condition of providing their motorcycle training classes, that all students sign a formal anticipatory release of all liability, and TC complied. We successfully argued on TC’s behalf that, under current Oregon law, that release was unenforceable:
a. because of the public service nature of the activities,
b. because it was an unconscionable and unfair contract of adhesion, and
c. because it was unlawfully over-broad.