The following is an article reprinted with permission from the Fall 2005 edition of The WWR Letter:
Liability for Sponsorship of an Event
By: Sara Donnersbach, Esquire
What risks are there in sponsoring an event, if those participating are injured during the event?
The answer to this question depends on what the sponsor does to carefully plan and take precautions to avoid liability associated with a participant’s injury. It is possible for a sponsor to incur liability, if a sponsor fails to plan carefully. Fortunately, statutes, express releases and waivers, and common law doctrines all protect sponsors from liability.
Ohio law provides several options to event sponsors who wish to protect themselves from potential liability. The law recognizes the fact that sponsored events, such as sporting events, often involve risks that cannot be eliminated through the exercise of proper care. Event promulgators still must take the initiative to ensure the safety of their participants, but the sponsors will not automatically incur liability for an accident.
Individuals who choose to take part in an event assume many of the risks associated with the event. Additionally, sponsors can require participants to sign releases or waivers prior to their participation in the event. If sponsors carefully make use of available precautions (such as waivers), the sponsors vastly reduce the likelihood of any liability.
With that said, a sponsor can still incur tort liability for negligence depending upon whether the sponsor owed any duty to the event participant, breached the duty owed, and a foreseeable injury or damage to the event participant resulted. Robinson v. Bates, 2005 Ohio App. LEXIS 1789, 2 (2005). If a person is legally obligated to act in a certain manner or with certain responsibility toward another person because of their relationship or situation, the person owes a ‘duty’ to the other person. Hardy v. Hall, 2003 Ohio App. LEXIS 4499, 4 (2003).
Waivers and releases of liability usually release someone from owing such a duty to another, if the person owed the duty voluntarily and freely signs the waiver. This is important because an actor who no longer owes a duty cannot be liable for negligence. Releases and waivers constitute express assumptions of risk on the part of the event participants. Express assumption of risk immunizes a sponsor from suit for negligence when a participant expressly contracts not to sue for any future injuries. Wilson, 2001 Ohio App. LEXIS at 4.
In one instance, a company sponsored an in-line skating event, where a participant was injured while using the in-line skates. The sponsor had each participant sign a release of liability to take part in the promotional event, and only then issued each participant in-line skates and access to the premises. While the company sponsor did not own the premises, the court held that the company sponsor owed no duty to the participants, and thus was not liable for participant injuries. The court relied upon Ohio Revised Code (O.R.C.) §1533.181, and found the company sponsor to be a ‘premises occupant.’ Ross v. Strasser, 116 Ohio App. 3d 662 (1996).
O.R.C. §1533.181 protects owners, lessees, or premises’ occupants from owing a duty to ‘recreational users’ of the premises:
(A) No owner, lessee, or occupant of premises:
(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.
(B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entry to certain individuals.
HISTORY: 130 v H 179, § 1 (Eff 9-24-63); 146 v H 117. Eff 9-29-95.
The term ‘recreational user’ refers to any person who: 1) has permission to use the land, 2) does not pay a fee or consideration for their use (other than a state or agency fee), and 3) enters the premises in order to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits. O.R.C. §1533.18(B). The term ‘premises’ encompasses both privately-owned and state-owned lands, ways, waters, and buildings. (O.R.C. §1533.18(A)). Company sponsors need not own the relevant premises in order to benefit from the statute. See Ross, 116 Ohio App. 3d at 12-13. Premises occupants, such as a company sponsor, with the right to admit or exclude entry onto the property, also qualify for statute’s protection. Id.
The recreational user statute may be able to offer the event sponsors some protection, but the sponsors need to qualify as occupants of the premises. The sponsor’s status as ‘occupants’ depends upon the procedures surrounding the event and the sponsor’s ability to exclude people from the event. If sponsors wish to be afforded the statute’s protection, they must take measures to assert some control over the area and event in question. The ability to control the area will be a determining factor in whether the sponsor is afforded immunity for purposes of the statute.
Are there any other sponsor protections or defenses?
When an event is knowingly dangerous, and a participant is injured while participating in such an event, courts have found that a sponsor will not be liable for those injuries. A sponsor will not be found liable where a participant assumes an ordinary risk. Wilson v. Lafferty Volunteer Fire Department 2001 Ohio App. LEXIS 5328, 1-2 (2001). In this case, the event sponsored was a game of softball, and the participant was injured while running. The court found the participant voluntarily entered the game, and while he did not sign any type of release prior to playing in the game, the event sponsor was protected by the defense of primary assumption of risk. Id at 11-12.
Primary assumption of risk relieves an event sponsor from owing a duty when risks are so inherent in an activity that the event sponsor cannot eliminate them. It is an affirmative defense and will act as a complete bar to plaintiff’s recovery if successful. Bundschu v. Naffah, 147 Ohio App. 3d 105, 112 (2002). An event sponsor may raise this complete defense when a participant voluntarily consents to an activity, understands that the activity involves known risks, and engages in the activity regardless of the risks. Wilson, 2001 Ohio App. LEXIS at 3.
Absent reckless or intentional conduct on the part of an event sponsor, a participant assumes the risk of injury when he or she partakes in the event. This standard applies whether the event was organized or unorganized, or supervised or unsupervised. Id at 8. Additionally, the standard extends to non-participants, owners, operators, and sponsors of recreational and sporting events. Id.
“[Wanton] misconduct differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.”
Staadecker v. Emerald Health Network, Inc., 1993 Ohio App. LEXIS 6010 (1993). An event sponsor who does not engage in wanton or willful conduct, will not be liable for a participant’s injuries.
What should you do to protect yourself as an event sponsor?
· Carefully plan and take precautions to avoid liability associated with a participant’s injury
· Take the initiative to ensure the safety of participants
· Require participants to sign releases or waivers prior to their participation in the event
· Obtain waivers and releases of liability
· Prevent otherwise needless risks that can be removed
· Adequately plan for the event and take any preventative measures that can identify a potential problem
Sara M. Donnersbach is a Partner in the Complex/Special Collections department of the Cleveland office of Weltman, Weinberg & Reis, Co., L.P.A. (WWR), where her responsibilities include handling complex consumer and commercial collections as well as litigation. She also oversees both the Governmental Collections Practice Group and the Attorney General Collection Unit. She can be reached at (216) 685-1039 or firstname.lastname@example.org.
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