June 12, 1997|By Dan Fesperman | Dan Fesperman,SUN STAFF
"Six days of fun," says the registration form for Cycle Across Maryland. "That's right, six days of cycling, exploring and good times across the State of Maryland. Cycle Across Maryland is a leisurely and relaxing 300-mile journey "
And so on.
Until you reach the fine print, where suddenly the journey sounds more like Cycle Across Hell.
That's because you've just entered the ever-expanding empire of the legal disclaimer, where lawyerly language forces you to acknowledge that your activity of choice -- whether it's bicycling, scouting, Little League baseball or just about anything else -- can do you all sorts of harm, so please agree in advance that any catastrophe is your fault, even if it's theirs.
Cycle Across Maryland's disclaimer, for example, asks you to "understand that the route requires bicycling in bad weather and that cyclists have been hospitalized and/or killed because of traffic mishaps. "
This is because of "risks including but not limited to collision with pedestrians, vehicles, other riders, and/or fixed or moving objects, the negligence of other riders, sponsors, promoters or drivers, and dangers arising from falls, road surface, equipment failure, inadequate safety equipment, weather conditions, as well as the possibility of physical and/or mental trauma."
"That's why we put it in small print," says Cycle Across Maryland's executive director, Pat Bernstein, only partly in jest.
When some applicants read the stuff, she says, "It stops them in their tracks."
But in a litigious age of eager TV lawyers and megabuck liability judgments, "it's absolutely a necessity," she says.
"It's one of the real sadnesses as an event organizer."
Just ask the folks at Little League how sad it can get. They, too, dutifully offer disclaimers to the parents of kids who sign up to play ball, warning that baseball, as any player or fan can tell you, "may result in serious injuries."
Nonetheless, when a 10-year-old New Jersey shortstop was moved to the outfield in a game in 1982 only to be smacked in the eye by a mishandled fly ball, his parents filed suit against his coach, arguing that the coach should have known that their son was a natural-born infielder.
The suit was settled out of court.
"You hear about what people sue for and it's ridiculous, so you have to go to ridiculous extremes in your language," says Ron Dilatush, spokesman for Pop Warner Football, which presides over 5,000 teams nationwide.
Often it would cost so much to defend against a lawsuit, no matter how bizarre the premise, that insurance companies and attorneys settle out of court instead of trying to win, in effect buying off a nuisance.
Youth organizations and activities face an additional problem with their disclaimers.
Minors can't sign a contract, so parents sign for them. But parents can't legally sign away the rights of a minor to sue, making the disclaimer an empty gesture.
That's one reason Little League spokesman Lance Van Auken says: "A lot of times it's not worth the paper it's written on."
Stephen Nolan, head of the Maryland Bar Association's litigation section, explains another reason: "In the case of these global, universal disclaimers, the court is going to look at the scope and breadth of the disclaimer and apply some reasonableness to it, in light of the circumstances that occurred at the time."
So although the disclaimer says a sponsor won't be held responsible for an act of negligence, he often can be.
In fact, sometimes the only time a disclaimer succeeds is when it dupes people into believing they've signed away their right to sue, Nolan says.
In other words, it might dissuade worthy lawsuits even as it fails to protect against outlandish ones.
But disclaimers do serve a worthy purpose, Nolan says: "They do educate the participants [as to] their own responsibility."
The litigious climate that spawned the disclaimers also seems to have spawned more rigorous safety precautions.
Cycle Across Maryland, for example, hires state police, employs trained ride leaders and combs the road in advance for hazards. In the realm of Pop Warner youth football, Dilatush says, some leagues require a criminal background check for every volunteer.
There's sometimes a high price for such precautions, and it's generally accompanied by a bill for liability insurance that's practically required these days before staging any event or being the host or organizer of any sort of physical fun.
There are some success stories among disclaimers. One that has consistently withstood legal challenges over the years, partly because it has been around for so long, is the one on baseball tickets that protects teams against damages for injuries from batted balls.
Also, sponsors can at least take comfort that their warnings haven't yet descended to the level of some product liability warnings, such as the one recently found by the New York Times on a Batman costume for children: "Cape does not enable user to fly."
Pub Date: 6/12/97
