Featured Article:

Duration of Waivers: A 3 Part Series — Part 1

Part 1

By Doyice Cotten

312217478_d6809aa6dc_z-1Tariq Davis, a minor, was injured when he ran into the street and was struck by an auto while chasing a soccer ball (Davis v. American Youth Soccer Organization, Virgin Islands, 2016). The American Youth Soccer Organization (AYSO) claimed protection from a waiver signed by a parent on behalf of the youth.

Courts in the Virgin Islands have stated that “an exculpatory clause which limits or absolves a party for its own ordinary negligence is generally enforceable, but the language used must be ‘broad and unambiguous’ or ‘clear and unequivocal.’”

Davis had registered for soccer and signed waivers on two previous years; however, AYSO could produce neither a registration nor a waiver for the year of the injury. They did produce a waiver for a prior year. AYSO stated that registration was on an annual basis. In the absence of an indisputably applicable agreement, the Court cannot review the pertinent exculpatory language to determine if it is clear, unambiguous, and unequivocal. In failing to produce a waiver, AYSO failed to satisfy their primary obligation of showing an absence of a genuine issue of material fact.

 AYSO argued that there was a registration record for Davis on their computer; further, they claimed participants did not have to register every year – so the earlier registration and waiver were still in effect. The court, however, felt that there was an ambiguity regarding registration requirements:

1) each executed registration form was of a one-year duration;

2) an executed registration form continued in effect for as long as the named player participated in the AYSO program; or

3) an executed registration form was effective for the named player until a new registration form was developed and implemented.

Consequently, the court stated that “Where there is a genuine issue about the duration of an agreement, and the temporal term is material, as it is here, summary judgment is inappropriate.

Risk Management Take-Aways

  1. Make certain that your waiver specifies a duration. In some cases, it might be for the “event.” In other cases, it might appropriate for the duration to be for a season. In yet other cases, it might be of unlimited duration (e.g., forever, on all subsequent dates).
  2. In a case such as this one, everyone should have to register each year (or specify that the waiver is for “now and all subsequent dates”).
  3. A foolproof record keeping system should be employed with backups of all records stored in another location.

 Photo Credit: Thanks to Jarrett Campbell at Flickr.


Read the Article

Recent Articles:


NJ Federal Court Addresses Several Waiver Issues:

By Doyice Cotten In a recent New Jersey case (Kang v. LA Fitness of South Plainfield, 2016), the court addressed several issues relating to waivers. Among them was 1) non-reader or speaker of English, 2) font size, 3) national association standards, 4) failure to read the waiver, 5) failure to explain the waiver, 6) failure to initial a provision of the waiver, and 7) contract of adhesion. Ms Kang was injured while working out on the chin/dip assist pull-up machine.... [read more]

Provider’s Cavalier Attitude toward Safety and Risk Management Proves Costly

By Doyice Cotten   Two major problems with liability waivers are that they are sometimes misunderstood and misused by owners or managers of sport businesses. First, some sport managers think that a liability waiver provides total protection against lawsuits for injury. They think they are completely protected against loss. But waivers do not always work! Sometimes there are statutes prohibiting their use (e.g., G.O.L 5-326 in NY prohibiting waivers when there is an entry fee). Sometimes the waiver is poorly written (e.g.,... [read more]

Waivers and Volunteer Workers

By Doyice Cotten Certain types of special relationships can affect the enforceability of liability waivers. One such relationship is that between an employer and an employee – often referred to as the master-servant relationship.  Generally, waivers which employers require that their employees sign are unenforceable because of the economic hold that the employer has over the employee. Such waivers are generally deemed to be in violation of public policy. In contrast, waivers between an employer and a volunteer worker are generally enforced.... [read more]

A Good Approach to Electronic Waivers in New York State

By Doyice Cotten This electronic waiver case was discussed briefly a couple of weeks ago. Here it is examined in more detail. A frequent question is “Are electronic waivers as good as paper waivers?” or “Are electronic waivers enforceable?” The answer seems to be “yes” for both questions. The writer has read electronic waivers in several states and has yet to find one that fails because it is electronic; in fact,... [read more]

How Broad Should Your Waiver Be?

By Doyice Cotten Can a waiver fail to protect the service provider because it is too broad in scope?  YES.  Can a waiver fail to protect the service provider because it is not broad enough in scope?  YES. Where does the provider or the waiver writer go from here? One might answer “Make it as broad as you can without making it too broad . . . but, be sure you cover everything.” That doesn’t help much, does it?... [read more]

Electronic or Online Waivers: How Good Are They?

  By Doyice Cotten  The preferred form of waiver usage in recreation and sport businesses is quickly becoming electronic (waiver available on a computer, tablet, or online). I am asked whether electronic waivers are as valid and effective as paper waivers.  Today, such waivers are in widespread use and there is no question as to their validity. This writer has found no cases in which a waiver has failed simply because it was not a paper waiver.... [read more]