If lawsuits like this one succeed, eventually we'll have no more horseback riding, white water rafting, swimming, diving, rock climbing, or any other potentially dangerous recreational activities, or they will be so prohibitively expensive, due to high liability insurance premiums, that only the very wealthy will be able to afford them.
I have used this very argument many times. In fact, there is a 1950's case in NJ, McCarthy v. NASCAR, where McCarthy was burned sued NASCAR because a fuel line ran through the passenger compartment of his car, which was a violation of a Department of Community Affairs regulation - this made McCarthy's liability waiver ineffective. NASCAR, now a multi-billion dollar industry- consciously left New Jersey, not to return until 2008.
Many Judges look at me like I put a thumb in their eye when I give them that one.