By: Scottsdale Injury Lawyers LLC
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Scottsdale Injury Lawyers Hired to Represent Woman Severely Injured in ATV Crash
Earlier this week, Scottsdale Injury Lawyers was hired to represent a woman who was injured in an ATV crash in Northern Maricopa County. The firm will advance personal injury claims against the rental and tour company who was responsible for renting the ATV and taking the client on a guided ATV tour. The firm decided to advance the claims after considering the initial evidence which supported that the ATV tour employees were negligent in how they handled the situation.
The Factual Allegations on Which the Personal Injury Lawsuit is Based
On or about January 2, 2019, a couple who was visiting Scottsdale decided to book an ATV tour being promoted by the resort hotel at which they were staying. The tour was to last three hours and was booked through a company called Arizona Outdoor Fun Adventures, LLC dba Arizona Outdoor Fun Adventure and Tours. The tour and ATV rental company operates from its location at 35972 Old Black Canyon Highway in Black Canyon City, Arizona.
After the couple arrived at the rental facility, they were equipped with helmets and other gear and assigned individual ATVs. They were then provided brief instructions on throttling and braking. The couple was with a group of approximately ten other riders. From there, the group was taken to a practice area presumably to ensure that they were comfortable and could control the vehicles.
The practice area had a series of dirt slopes and concrete curbs for the riders to navigate over. To navigate the concrete curbs, the riders were required to accelerate and brake quickly in rapid succession. This skill was difficult for the client to learn. As she attempted to learn the skill, she inadvertently hit the throttle instead of the brake and crashed into an ATV in front of her.
This terrified the client who realized she was not comfortable or ready to drive the ATV over obstacles or difficult terrain. An employee asked if she wanted to switch to a two-person off-road vehicle. The client said yes believing it would be safer if her husband was driving and she was a passenger. However, the employee did not switch her to a two-person vehicle. Instead, the employee suggested that something was wrong with the throttle of the ATV she crashed. The employee then decided to bring up another single person ATV. The crash and bringing up a second ATV took time and the group was delayed. The client felt pressured by the employees who appeared concerned by their apparent need to keep the group moving.
Shortly after the client mounted the second ATV, she again confused the throttle with the brake and crashed within seconds. The client was catapulted from the ATV like a rodeo bull rider and landed on her right side. The impact with the ground caused significant and serious injuries. 911 was called and both the fire department and EMS responded. The client was then transported to the John C. Lincoln Hospital Trauma Center by ambulance.
X-rays at the hospital revealed that the client’s right shoulder had been severely injured. Specifically, the client sustained a closed fracture of the head of her right humerus bone. The client was admitted to the hospital and surgery was performed the next day. The surgery required hardware and screws to rebuild and secure the humerus bone. The client also suffered other injuries to her left thumb, right leg, chest, right side rib cage and both feet.
Scottsdale Injury Lawyers Explains Why Assumption of the Risk Does Not Bar The Lawsuit
It is believed that the client may have signed a waiver and release of liability prior to going on the ATV tours. Most people believe that by singing such a release or waiver, that they may no longer bring a lawsuit or recover for injuries associated with the activity. However, this is not necessarily the case under Arizona law.
The Arizona Constitution at Article 18, Sec. 5. Sets forth that the defense “of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” This applies to both express and implied assumption of risk. Express assumption of risk is when someone expressly agrees to assuming the risk by signing a release or other contract-based document. The Arizona case establishing this rule is Phelps v. Firebird Raceway, Inc., 210 Ariz. 403 (2005).
In the Phelps case, a professional racecar driver (who had participated in over 100 races at Firebird Raceway) sued the raceway after he crashed and was injured there. Before racing, the driver had signed a “Release and covenant Not to Sue” and a “Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement.” The documents contained language saying that the driver agreed not to sue for any injuries sustained there. The documents also contained language stating that the driver recognized racing was an especially dangerous activity and that he assumed all risk of associated injuries.
After the driver crashed, his car caught fire. The driver sued the raceway claiming he was not extracted from his car quickly enough and suffered serious burns as a result. The racetrack sought to dispose of the lawsuit by claiming the driver could not prevail, much less present his case to the jury, because of the documents he signed. The Arizona Supreme Court ruled otherwise. That is “the validity of an express contractual assumption of risk is a question of fact for a jury…At trial, Firebird is entitled to have the jury instructed both as to the enforceability of contracts…as long as it is clear that the ultimate decision as to the enforceability of the Release and Waiver signed by Phelps is for the jury.” Phelps at pg. 410.
What Does the Phelps Case Mean for People Injured in Arizona Who Have Signed a Waiver or Release of Liability
To be clear, Phelps does not mean that someone who was injured in Arizona and who signed a waiver or release of liability (prior to the injury) will prevail on his or her injury claim. All Phelps stands for is the fact that the question will be up to the jury as to whether or not to enforce the waiver or release of liability. Specifically: 1) the scope of the waiver 2) whether it covered the conduct and injury suffered, and 3) whether the signer understood what he or she signed or agreed to at the time.
If you or a loved one was injured in Arizona participating in an activity for which a release of liability or waiver of liability was signed, a claim may still be advanced if it can be argued that the waiver or release is not enforceable. A jury may be reluctant to enforce a release or waiver of liability if the conduct of the parties released was negligent, especially dangerous or reckless. You may further be able to advance a claim, despite signing a waiver or release, if you were unclear of what you were signing or were incapable of appreciating the effect of what you were signing. For example, if you were mentally compromised, under duress, or told the document was something other than what it actually was.
Finally, if the conduct or acts that led to your injury, can be said to fall outside the scope of the waiver, then you may still recover. For example, if you went to a trampoline park or jump facility and signed a release or waiver of liability, yet you were injured by a light falling from the ceiling. Even though the release or waiver may contain a blanket provision stating that you waive the right to sue for any and all injuries you sustained while in the facility—you clearly did not mean to sign away the right to sue for a negligently installed light fixture falling on your head. You likely intended to release injury claims associated with your jumping activities, for which you were knowingly assuming the risk. Under that scenario, a jury could find that the release or waiver of liability did not cover the act giving rise to the injury.
Contact Scottsdale Injury Lawyers if You Have an Injury Claim and Would Like a Free Consultation
If you or a loved one has an injury claim, contact Scottsdale Injury Lawyers for a free consultation. We will analyze your claim and the law that applies to it. We will tell you if an Arizona personal injury case may be brought to recover money for your injuries. If the case requires the help of a skilled personal injury attorney, we will discuss representing you and how we can assist.
About the author: The content on this page was written by Scottsdale personal injury attorney and civil rights lawyer, Tony Piccuta. Piccuta graduated with honors from Indiana University-Maurer School of Law in Bloomington, Indiana (Ranked Top 35 US News & World Report 2018). Piccuta took and passed the State bars of Arizona, California, Illinois and Nevada (all on the first try). He actively practices throughout Arizona and California. He is a trial attorney that regularly handles serious personal injury cases and civil rights lawsuits. He has obtained six and seven figure verdicts in both state and federal court. He has been recognized by Super Lawyers for six years straight. He is a member of the Arizona Association of Justice, Maricopa County Bar Association, Scottsdale Bar Association, American Association for Justice, National Police Accountability Project and Consumer Attorneys of California, among other organizations.
Disclaimer: The information on this web site is for informational purposes only and does not constitute legal advice. Reading and relying upon the content on this page does not create an attorney-client relationship. If you are seeking legal advice, you should contact our law firm for a free consultation and to discuss your specific case and issues.