Should user waivers limiting liability be “unconscionable contracts?” In my opinion it depends on the circumstances, but in general, yes to me they are unconscionable, and a useless exercise because lawsuits will still happen and decide with or without a waiver what the situation is.
A liability release is unconscionable and unenforceable if both its procedural and substantive elements are so against public policy that they protect negligent premises-management and allocate all negligent damages upon a paying customer with no bargaining power.Bagley v. Mt. Bachelor, Inc.
What this means is that you can’t ask someone to sign off their health and well being (or life) to what amounts to a buyer beware (Caveat emptor) circumstance, and possibly a case of information asymmetry, especially if negligence or ignorance on the builder/s or maintainer/s part are to blame.
There is a plethora of information on liability waivers on the web. I found this useful: Release of Liability: A Balancing of Tort and Contract Law.
Hazards vs Risks or Risks can be Hazardous, or Hazards can be Risks?
Is walking, running, horse back riding, motorized vehicles, and riding bikes all inherently risky? What about trail “features” and structures? The lines between risky and hazardous users and/or features can blur. When does a trail feature or structure that fails structurally or is unsafe by poor design become a risk vs a hazard in itself? What is negligence? Did the jump or drop design take into consideration the equivalent fall height for the average velocity in question? Did nature place that feature or a human, and where do we draw the line? How many G’s did that jump transition or berm place on the user’s knees, or did it cause them to flip onto their heads/necks? Who did the math, if any?
Sovereign immunity for trail conditions
Laws surrounding recreational use on public and private property often vary by state.
There are some limitations for situations where the governmental agency creates the trail.
- OR, liability waivers: Bagley v. Mt. Bachelor, Inc.
- NY, assumption of risk: Lamey v. Foley
- NY, negligence: Basso v. Miller
- NY, assumption of risk: Morgan vs NY
- NY, assumption of risk: Swan v. Town of Grand Island
- NY, General Obligations Law Section 9-103, No duty to keep premises safe for certain uses
- CA, Dangerous Conditions of Public Property, see below
California Government Code
DIVISION 3.6. CLAIMS AND ACTIONS AGAINST PUBLIC ENTITIES AND PUBLIC EMPLOYEES 810. – 998.3. (Division 3.6 added by Stats. 1963, Ch. 1681.)
PART 2. LIABILITY OF PUBLIC ENTITIES AND PUBLIC EMPLOYEES 814. – 895.8. (Part 2 added by Stats. 1963, Ch. 1681.)
CHAPTER 2. Dangerous Conditions of Public Property 830. – 840.6. (Chapter 2 added by Stats. 1963, Ch. 1681.)
ARTICLE 1. General [830. – 831.8.] (Article 1 added by Stats. 1963, Ch. 1681.)
831.4. A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:
(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a
(1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.
(b) Any trail used for the above purposes.
831.7. (a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.
(b) As used in this section, “hazardous recreational activity” means a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator.
“Hazardous recreational activity” also means:
(3) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, self-contained underwater breathing apparatus (SCUBA) diving, spelunking, skydiving, sport parachuting, paragliding, body contact sports, surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing. For the purposes of this subdivision, “mountain bicycling” does not include riding a bicycle on paved pathways, roadways, or sidewalks..
(c) (1) Notwithstanding subdivision (a), this section does not limit liability that would otherwise exist for any of the following:
(A) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury
(B) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this subparagraph, “specific fee” does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking
fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.
(C) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement utilized in the hazardous recreational activity out of which the damage or injury arose.
(D) Damage or injury suffered in any case where the public entity or employee recklessly or with gross negligence promoted the participation in or observance of a hazardous recreational activity. For purposes of this subparagraph, promotional literature or a public announcement or advertisement that merely describes the available facilities and services on the property does not in itself constitute a reckless or grossly negligent promotion.
(E) An act of gross negligence by a public entity or a public employee that is the proximate cause of the injury.
(2) Nothing in this subdivision creates a duty of care or basis of liability for personal injury or damage to personal property.
(d) Nothing in this section limits the liability of an independent concessionaire, or any person or organization other than the public entity, whether or not the person or organization has a contractual relationship with the public entity to use the public property, for injuries or damages suffered in any case as a result of the operation
of a hazardous recreational activity on public property by the concessionaire, person, or organization.
The statute posted above doesn’t “cover” private landowners. Private Landowners of open lands find safe haven in California Civil Code 846:
846. An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for
such purpose, except as provided in this section. A “recreational purpose,” as used in this section, includes such
activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.
An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been
granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.
This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
Nothing in this section creates a duty of care or ground of liability for injury to person or property.