Ultrahazardous activities are defined as those activities that are so inherently dangerous that an individual who performs them may be held liable for injuries which occur to other individuals. This applies even if reasonable steps are taken to prevent injuries.
Ultrahazardous activities may also be referred to as abnormally dangerous activities. These activities are classified as strict liability torts.
This means that the individual who is performing the activity may be held liable even if they did not make any mistakes as well as if they took proper precautions to prevent harm from occurring. In some instances, the term ultrahazardous activity may be used to describe high risk and extreme recreational activities, including skydiving or cliff diving.
These activities, however, are often not included in discussions related to torts because, in most cases, individuals are required to sign liability waivers and consent forms prior to engaging in these types of activities.
What is Required to Prove Damages from Ultrahazardous Activities?
In order for a plaintiff to prevail on their ultrahazardous or abnormally dangerous activity claim, they are required to prove the following elements:
- The ultrahazardous activity involved a verifiable risk of serious harm to individuals or property;
- The ultrahazardous activity cannot be performed without the risk of serious harm, no matter how much care is taken; and
- The ultrahazardous activity is not commonly engaged in by individuals in the community.
The plaintiff is required to prove that they sustained an injury or injuries. The plaintiff is also required to prove that the actions of the defendant were the actual cause of their injuries.
The most important element this plaintiff is required to prove from those mentioned above is arguably the community standards element. Actions which would not normally be considered ultrahazardous may become an ultrahazardous activity if it is performed in a specific community or location.
For example, the transport of hazardous materials in and of itself may not be considered an ultrahazardous activity. However, if that transportation was conducted near a school, it may be considered an ultrahazardous activity.
What are Some Common Examples of Ultrahazardous Activities?
Common examples of activities that may be considered ultrahazardous include:
- The storage or use of explosives;
- Blasting or demolitions operations;
- Using, transporting, storing, or handling hazardous chemicals;
- Disposing of nuclear or chemical wastes;
- Controlled burning of buildings or fields;
- Activities involving radioactive materials; and
- Certain types of product defects.
As noted above, if an individual engages in an abnormally hazardous activity injures another individual during that activity, they can be held liable even if they exercised reasonable care.
How Can I Legally Protect Myself While Skydiving, Parachuting, or Parasailing?
As with any activity an individual tries for the first time, it is good for them to be informed. Helpful hints to follow prior to signing up for a skydiving, parachuting or parasailing experience include:
- Visit the association websites of the activity the individual would like to participate in. Most sites will recommend particular companies which are known to follow safety standards;
- Ask questions and try to discover the experience level and safety record of the company that they plan on using;
- Express that the individual does not want to proceed unless the wind conditions are suitable to the activity;
- Determine the type of insurance and the coverage provided for both the recreation company and the participant;
- Look into any government regulations, provisions, or enactments that deal with the activity; and
- If a release agreement is required, make sure to read the agreement thoroughly and understand the agreement prior to signing.
Who Can I Sue if I Am Injured?
If an individual is injured while they are skydiving, parachuting, or parasailing, they may be able to sue any of the following:
- Recreation company;
- Training center;
- Manufacturer of the products used;
- Retailer of the products used; and
- Owner of the land the activity is being conducted on.
With each of these entities, the lawsuit will likely be based on negligence. In those cases, the success of the claim will depend upon the duty of care the particular party owed to the injured party.
In general, courts have held that only the training center or the instructor was liable. It is important to note that liability against these parties is often determined by whether the participant signed a release agreement.
Will I be Able to Sue For Personal Injuries if I Signed a Release Agreement?
The courts have taken a strict approach when interpreting release agreements. The majority of release agreements are intended to protect a recreation company from being sued for negligence. Thus, the majority of courts require that any release agreement be very clear and specific as to the dangers or the risks and the limits of their liability.
If the release agreement is clear and specific, however, courts have generally held the agreement to be enforceable, which prevents an injured party from suing.
What Causes Skydiving Accidents?
Skydiving activity is a risky activity in which accidents do occur. Because of the level of hazard related to the activity, the injuries which result may be particularly grave.
Skydiving accidents may occur due to:
- Faulty equipment;
- Instructor error;
- User error;
- Hazardous conditions; or
- Inclement weather.
How Can a Plaintiff Recover Damages?
In general, a plaintiff can recover damages through a negligence tort lawsuit. Most schools and instructors that offer skydiving classes and experiences require the participant to sign a liability waiver.
This releases the instructor or business owner from liability if an injury occurs during an ultrahazardous activity, which includes, skydiving. Courts use the legal concepts of contributory or comparative negligence when assessing the amount of damages which are awarded from a tort action.
This means that if the injured party, or plaintiff who sustained the injury, was at all responsible for their injuries, their damages may be limited or denied. Assumption of the risk is a legal concept which may make it difficult for a plaintiff to prevail in a skydiving accident lawsuit.
This means that the individual who sustained the injury understood that the activity had risks and that they could be injured, but they chose to engage in the activity anyway. When an individual assumes the risk, their damages may be limited or denied.
What Legal Remedies Exist?
There may still be ways for a plaintiff to recover damages even if they assumed the risk or contributed to their own injuries, including:
- Gross negligence: If the skydiving company failed to take reasonable care;
- Willful or wanton misconduct: If the skydiving company intentionally caused the plaintiff’s injury;
- Contract violations: If there are problems with the liability waiver such as the waiver is:
- violates public policy; or
- the plaintiff could not understand the contract due to mental or physical incapacity; and
- Minors: Individuals under the age of 18 cannot assume their own risk.
When filing a claim, it is important to ensure that it is filed promptly in order to avoid any statute of limitations issues. Documentation an individual should keep includes:
- Police reports;
- Insurance reports; and
- Medical records.
Do I Need a Lawyer?
Whether you are the injured party filing the lawsuit or are being sued as a business owner, it will be in your best interest to consult with a personal injury attorney who can provide the best possible representation for your case.
Torts involving ultra-hazardous activities are more nuanced than other types of personal injury torts, so it is important to retain a professional who has experience in this area of law.