Can You Waive Gross Negligence When an Accident Happens?

Can an ATV Park Owner Waive Gross Negligence When an Accident Happens?

In this case, a surviving widow and personal representative of her husband’s estate filed a wrongful death action against an offroad park (“the Park”) in Georgia after the husband died while riding his dirt bike on a trail. After a jury awarded his spouse damages of $22 million, the Park filed a motion for a new trial and judgment notwithstanding the verdict, which the trial court denied. The park appealed.


On Saturday, September 28, 2019, the husband visited the Park, an offroad acreage in Union Point, Georgia, as he had many times before. He rode his dirt bike on what was called the “Bomber Track.” The owner of the Park testified that the weather that day was hot and dry, and Saturdays were busy when there was favorable weather.

Before riding on the trails, the deceased executed a waiver, which stated, in pertinent part:

In consideration of being permitted to use the property, equipment, or facilities owned by the Park for the purpose of the following activities: hunting, fishing, camping, trail riding, racing or any similar activity . . . his/her personal representatives, assigns, heirs, and next of kin, hereby releases, waives, discharges and covenants to hold harmless DURHAMTOWN from all liability to PARTICIPANT, for all loss and/or damage on account of injury to the person or property of, or resulting in the death of PARTICIPANT, unless caused by the willful and wanton negligent act of the Park while PARTICIPANT is competing, working, or for any other purpose participating in any of the above-referenced activities in any form or fashion. . . . PARTICIPANT acknowledges that such previously described activities are inherently dangerous, and that participation in such activities involve an assumption of risk that could result in damage to property, injury, or death to PARTICIPANT.

On that same day, the park owner drove an excavator owned by the Park across the Bomber Track and into the woods. He testified that he was aware that the track was open and active, but he was moving the excavator so work could be done the next day. He also acknowledged that the Park had a policy dictating that machinery should be kept 30 to 50 feet off the track at all times. Within a minute or so after crossing the Bomber Track, he saw a motorcycle down on the track. When he got closer, he saw a tree across the track, the downed bike, and the decedent’s body. He then radioed for assistance and asked that they call 911. The owner testified that he assumed at that point that the decedent had hit a fallen tree.

The first police officer to respond to the scene examined the bike and saw wood lodged in the handlebars. Because there was no other damage to the bike, he concluded that the tree hit the handlebars in a downward motion. The officer testified that he asked the park owner what happened, and the owner said that he was operating the excavator in the woods. He was driving the excavator down the ditch, and he heard something that sounded like a tree falling. He stated that he thought he’d hit a tree and didn’t think anything about it. The owner drove the excavator down the ditch and saw a tree leaning across the track. He looked up and saw a dirt bike lying on the ground . . . and the deceased lying on the ground.

A park employee was heard on the police officer’s camera footage saying that they’d been clearing trees in the area. The coroner’s narrative showed that the park owner told him he’d been taking down some trees in the area. The police officer testified that based on his investigation, he believed the park owner hit the tree and knocked it down.

The police officer’s supervisor at the scene testified that it was obvious that the motorcycle had been struck by a tree from the pieces of wood in the handlebar. He also said that the shovel on the backhoe was right next to the stump of the fallen tree, and photographs evidencing this were introduced into evidence. The lieutenant also testified that he thought that the Park owner had knocked down the tree.

The Park’s theory was that the deceased had hit a fallen tree, but it offered no evidence to support this at trial. The plaintiff’s accident reconstruction expert testified that he inspected the bike, the decedent’s protective gear, and the site, and reviewed police and coroner records, photographs, and depositions as part of his investigation. The expert opined that a falling tree hit the decedent’s head, pushing him back off of the bike and causing his death. The injuries to the decedent’s face and neck were consistent with the tree striking the front top area of his head. He also opined that the deceased couldn’t have run into a fallen tree lying on the ground because he would’ve flown over the handlebars, the bike would have tumbled, and the scene would’ve been completely different. The expert testified that the decedent’s head fractures couldn’t have been caused simply by falling to the ground.

The Georgia Bureau of Investigation pathologist who performed the autopsy testified that the decedent sustained fractures to his face, head, and the base of his skull, consistent with a severe impact; that motorcyclists who strike fixed objects in their path typically sustain pelvic injuries and the decedent had none; and that the decedent died instantly. The pathologist opined that the tree fell onto the decedent and therefore listed the cause of death as “motorcyclist struck by tree.”

The Park offered no evidence at trial, and the jury returned a verdict against them. The Park filed a motion for a new trial and/or motion for JNOV (judgment notwithstanding the verdict), which the trial court denied.

On appeal, the Park argued that the trial court erred by denying their motion for directed verdict because the waiver signed by the deceased barred the claims brought in this action as there was no evidence of gross negligence, which rendered the waiver applicable.

Can a Party Exempt Itself from Gross Negligence in a Waiver?

Presiding Judge Sara Doyle of the Georgia Court of Appeals wrote that the Park’s stance was that the waiver wasn’t required to include every risk that a motocross dirt bike rider may experience, and in this instance, the release was broad enough to cover injuries or death related to falling trees. However, the judge explained that a party can’t exempt itself from gross negligence in a waiver.

Gross negligence is the absence of even slight diligence, and slight diligence is defined in O.C.G.A. § 51‑1‑4 as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of diligence that even careless people are accustomed to exercise. While questions of gross negligence and slight diligence are usually to be determined by a factfinder, courts may resolve them as matters of law in plain and indisputable cases, Judge Doyle explained.

On its face, the waiver in this case expressly didn’t apply to injuries “caused by the willful and wanton negligent act of the Park” while the participant was engaging in activities sanctioned on the property, such as trail riding. The park owner knew that the track was open and busy on the day of the accident, yet he drove the excavator across the track anyway and was operating nearby despite the Park’s policy of not operating equipment within 30 to 50 feet of an open track. Photos showed the bucket of the excavator near the stump of the tree that fell and killed the decedent. The park owner told the police officer that he thought he’d hit a tree and didn’t think anything about it. He also told the coroner that he had been taking down some trees in the area.

The Park’s argument was based solely on the theory that a dead tree fell and caused the deceased’s death, Judge Doyle said. It offered no evidence to support its theory. Moreover, its argument was belied by the evidence that the park owner hit the tree, causing it to fall directly onto the decedent’s head. The medical evidence and other expert testimony were consistent with this cause of death.

As a result,  the Court of Appeals found there was some evidence to support the verdict, and the trial court properly denied the defendant’s motion for a directed verdict on the issue of whether the waiver absolved the Park of liability. The judgment was affirmed. McCommons v. White, 2024 Ga. App. LEXIS 117 (Ga. App. March 13, 2024).

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