Liability Waivers for US Sports Venue Operators: Key Takeaways from Quezada v. Game Truck Georgia

---

This piece was written for and first published by LawInSport. The original is available to view here.

Liability waivers are an ever-present feature of American sports, given the relatively litigious nature of the American civil court system.¹[1]Holger Spamann, Monetary Liability for Breach of the Duty of Care, Harvard Law School Journal of Legal Analysis Vol. 8 No. 2 (2016) Sports venue liability is a critical issue, especially as such venues re-open as the severity of pandemic eases in some parts of the world. A recent case of Salvador Reyes Quezada v. Game Truck Georgia, LLC (Quezada) is a helpful reminder if of the potential liability for sports venues and businesses for injuries sustained by participants.

This case is a good reminder of the scope and legality of liability waivers, the potential liability of other non-parties and the quantum (amount) of damages. The case also deals with interesting aspects of U.S. civil procedure, not least for non-US readers the fact that civil trials are decided by jury. The legal instructions given to the jury on the ‘assumption of risk’ played an important role in the case.

Facts

In Quezada, the plaintiff (Mr Reyes) sued Game Truck Georgia (GTG), operators of a bubble soccer venue, for injuries he received while participating in a bubble soccer event at that venue.²[2]Salvador Reyes Quezada v. GTG, LLC, No. A21A0439, 2021 WL 2327703 (Ga. Ct. App. 2021)

Mr Reyes was a senior on Campbell High School’s soccer team in 2016. As a part of a high school recreational event to celebrate the end of the soccer season, he participated in a bubble soccer game at GTG. Prior to the game, a safety briefing was given to participants. GTG employees then assisted the participants with putting on the bubble suits correctly and reminded them of important safety rules. Mr Reyes, however, arrived late to the event and missed the safety briefing.

When the game started, Mr Reyes ran towards another student at speed in his bubble suit. He testified that he’d seen other participants doing this before, that no one had told him not to do it, and that he thought it was safe. Unfortunately, Mr Reyes hit the other player, fell to the ground and hit his forehead. After the coach noticed excessive bleeding and swelling to his forehead, an ambulance was called and Mr Quezada was rushed to hospital. At hospital, doctors determined that he had suffered significant injuries, including multiple fractures to his forehead and brain damage to his frontal lobe.

Mr Reyes filed a claim in negligence for damages against GTG for their failure to warn him of possible injury, the lack of proper supervision, the lack of physical parameters, and the lack of any safety instructions which provided Mr Reyes with a false sense of security and protection”

GTG asserted that he had participated in bubble soccer before, and therefore knew of the risks and had voluntarily agreed to assume those risks.

Decision

First instance

The initial jury trial resulted in success for Mr Reyes; he won a judgment of $4,650,000 against Game Truck.³[4]Id. Mr Reyes was found to be partially responsible for his own actions, but only by 7%. The trial court found GTG was 93% responsible. This percentage-based theory of liability is an important part of the case and became an issue on appeal.

The jury apparently recognized that while Mr Reyes had some responsibility because he missed the safety briefing, the venue bore most of the responsibility for the injuries. In this case, the trial court concluded that the venue should have ensured the safety of its participants before the game began. The idea that both parties may have been responsible is discussed in the appeal. This is the most significant portion of the ruling because it serves as apparent motivation for GTG to appeal.

Court of Appeals

GTG appealed the decision on four grounds:

• that the jury was not properly given instruction about risk assumption by participants.
• the court erroneously excluded other at-fault entities or individuals.
• that expert witnesses were improperly excluded.
• that the damages award was excessive.

On June 8, the Court of Appeals handed down their judgment (available here), ordering a retrial. The judgment raised a number of interesting issues regarding the particularities of American civil jury trials and the law surrounding it that we will address in turn.

Ground 1: The jury was given improper instruction

The dispute was over the necessity of a particular instruction⁴[4]For more information on what are jury instructions, please see here: ‘How Courts Work’ American Bar, published on 9 September 2019, viewed on 6 August, 2020, https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/juryinstruct/ regarding Mr Reyes’s risk assumption. The appeals court stated, in response to evidence that Mr., Reyes knew of the risk to some degree, “Given this slight evidence, the trial court should have instructed the jury on assumption of the risk.”⁵[5]Quezada at 7. The instruction at issue, which the appeals court found insufficient enough to order a new trial, was as follows:

“Every person has a duty to use ordinary care for his or her own safety. If you should determine from the evidence that the plaintiff failed to use ordinary care, and that the failure was the sole proximate cause of the plaintiff’s injuries, then the plaintiff could not recover from the defendant.”⁶[6]Quezada at 5.

The trial court, in an apparent error, did not allow the jury to receive the proper instruction requested by GTG about the legal standard for Mr Reyes’s assumption of risk, which could (in theory) provide a valid legal defense for GTG and altered the outcome of the jury’s decision. According to the appeals court, the instruction that should have been read is as follows:

When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care for one’s own safety, that person cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of the other person. (Georgia Suggested Pattern Jury Instructions)

The court found that while the versions are somewhat similar, failing to use the formal requested instruction left out important details regarding Mr Reyes’s knowledge and his voluntary participation⁷[7]Id.:

“Although similar to the requested charge on assumption of the risk, the pattern charge on duty to use ordinary care for one’s safety omits the knowledge and voluntary exposure elements highlighted in the pattern charge of assumption of the risk. Therefore, the charge as given is not a complete statement of the appropriate law that makes up Game Truck Georgia’s defense on the substantial and vital issue of assumption of the risk.”⁸[8]Id. at 7.

---

As a result, the appeals court said that while the duty of care that GTG owed to Mr Reyes was properly considered, his assumption of the risks of playing the bubble soccer game may not have been. The appeals court considered this lack of consideration so important that it granted the appeal on this ground and ordered a new trial.⁹[9]Id. at 8.

Grounds 2-4

GTG unsuccessfully asked the appeals court to order a new trial on the grounds that other individuals not included in the original lawsuit could be at fault to a degree (ground 2). While GTG raised this issue, it did not contest a motion to exclude evidence about non-party fault. This failure to object to a motion that excluded evidence about other non-parties’ potential fault prevented Game Truck from raising the issue again. Citing Georgia case law, by failing to raise a “specific and timely” objection to the motion that discarded the evidence, GTG cannot appeal the issue because it has already been decided.¹⁰[10]Quezada at 4.

GTG also alleged (ground 3) that by allowing an expert that did not review on a particular set of Georgia state regulations on amusement rides, the trial court was in error and a new trial should be ordered on those grounds. Mr Reyes had an expert who did not base his assertions on that official set of regulations. GTG tried to have that expert’s testimony thrown out for that reason. However, Georgia law does not require an expert to have completely adequate knowledge. Rather, the adequacy of an expert’s knowledge is a question for the jury, according to the appeals court.

The appeals court declined to address whether the damages were excessive (ground 4) because by ordering a new trial, the award would be reconsidered in any event.

Analysis and Discussion

Jury trials for civil cases

In the US, juries can decide on the merits of civil cases and damages awards in civil cases. These juries, like any other, are made up of several people selected from the general public. According to Georgia law, in civil cases with damages exceeding $25,000, parties may request a jury of 12.¹¹[11]Ga. Law of Torts Preparation for Trial § 12:3 (2021) These juries are drawn from local populations; civil trial courts in Georgia will draw jury members from the geographic area the court has responsibility for.¹²[12]Id. This geographic area is set by the state legislature when the court is created.¹³[13]Id.

As members of the general public, prospective jury members may not know the intricacies of the law or the legal standards necessary for determining one party’s fault or some other important issue of the law. Jury instructions help to ameliorate this issue. Each jurisdiction, which can include many courts, usually establishes jury instructions for every court in the jurisdiction. Every Georgia state court is bound by the same jury instructions. In Quezada, the appeals court cited Georgia case law that requires juries be given “…appropriate instruction on every substantial and vital issue.”¹⁴[14]Salvador Reyes Quezada v. GTG, LLC, No. A21A0439, 2021 WL 2327703 (Ga. Ct. App. 2021)

Duty of Care vs Assumption Of Risk

The duty of care is a principle in tort law that imposes a responsibility on someone, in this case Game Truck, that requires them to take certain action or refrain from action in order to prevent injury.¹⁵[15]‘Duty of Care’, New York City Bar, viewed on 6 August 2021, https://www.nycbar.org/get-legal-help/article/personal-injury-and-accidents/duty-care/

The assumption of risk is a doctrine in which a person voluntarily assumes the risk of harm from an activity. The doctrine is subject to state-by-state articulation and application, with some states leaning more in the direction of holding individuals responsible for their knowing participation in a dangerous activity, and others in the direction of imposing liability on the deeper pockets, usually the hosts of the activity.¹⁶[16]Restatement (Second) of Torts § 496A (Am. Law Inst. 1965) The applicability of this doctrine is not universal across all legal jurisdictions “Assumption of risk” refers to a doctrine in US personal injury cases that can limit or even completely bar plaintiff recovery for the plaintiff’s actions.¹⁷[17]30 Am. Jur. Proof of Facts 3d 161 Assumption of Risk Defense in Sports or Recreation Injury Cases § 1.2 (2021) The doctrine is applied and articulated on a state-by-state basis.¹⁸[18]Griffin Toronjo Pivateau, Article, Tackling the Competitive Sports Doctrine: A New Proposal for Sports Injuries in Texas, 9 Tex. Rev. Ent. & Sports L. 85, 108 (2007), https://www.researchgate.net/publication/228141316_Tackling_the_Competitive_Sports_Doctrine_A_New_Proposal_for_Sports_Injuries_in_Texas Some states apply a total bar to recovery if the risk is assumed, some allow for partial recovery, and some have completely disregarded the concept and have subsumed the assumption of the risk doctrine into broader statutes about comparative negligence.¹⁹[19]Id. at 110. Assumption of risk is a legal defense that can be used to absolve a defendant of liability even if they fell short of their legal duty of care:

“The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk means that the plaintiff has both actual and subjective knowledge of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.”²⁰[20]Id. at Page 5; Daly 308, Ga at 834

In the case at hand, GTG elicited testimony that Reyes “had played soccer since a young age, that he was familiar with its rules, that he understood that bubble soccer would be played according to the basic rules of soccer, and that the rules of soccer prohibit players from head-butting or rushing at other players who do not have the ball. There was also some evidence that a Game Truck Georgia employee instructed Reyes not to engage in horseplay or to charge at other players prior to the bubble soccer match.”

In granting the appeal, the District Court did not assess whether or not the Mr. Reyes had assumed the risks of the injuries he ultimately suffered, only that the matter must be reheard as the jury at the trial court were not correctly instructed in how to consider this question: “It is the duty of the trial court, whether requested or not, to give the jury appropriate instructions on every substantial and vital issue presented by the evidence, and on every theory of the case.”²¹[21]Id. at Page 4.

When the case is reheard, the new jury will be given the proper instruction on assumption of risk (as set out above) so that they can again assess the relative proportion of fault of each party.

Lessons for sports organizers

Sports and events organizers should be very wary of when and where they perform safety briefings. Failing to include all game participants in safety briefings can lead to very unfortunate and costly situations like the present one. Litigation can drag on for years and could create issues with continuing business operation. There are several steps organizers can take to mitigate these risks, detailed below.

For event organizers, make sure all of your players participate in pre-game safety briefings and any other safety procedures proscribed by the venue. Be sure you know of those procedures beforehand. During the game or activity, rules and safety measures should be strictly enforced, and not ignored or only sporadically enforced. Games organizers should be sure to stringently enforce their safety rules and should be prepared to stop the activity immediately in the event of violation. Organizers should also be prepared to suspend particular individuals from play if their conduct is deemed potentially unsafe.

Event organisers should have individual liability release forms signed by the participants in the sports activity (or by the parents/legal guardians if the participant is a minor). In case the activity is for a school, then the form can be sent to the participants in advance and participation in the activity can be made contingent on the participants submitting a validly signed release.

Sports organizations should take care to raise objections to legal issues in a timely manner. In this case, the appeals court denied an appeal based on non-party fault because GTG failed to appeal a ruling by the court of first instance on a motion by Mr. Reyes to exclude evidence about non-party fault and release forms.²²[22]Id. at 9. Failures to respond in a timely manner to case developments can lead to negative outcomes for venues, regardless of potential evidence.

Written by: Benjamin Kaplan
Benjamin is a 2022 J.D. Candidate at Brooklyn Law School

---