Colorado Court Enforces an On-line Waiver

By Doyice Cotten

Berenson (Berenson v. USA Hockey, Inc., 2013), an amateur hockey player, played in an amateur hockey league for several years. She was required by the league to complete the 2215657406_e3a70cbd29standard player registration on the USA Hockey website annually. To complete the registration, she had affirm her agreement to the terms by inserting her initials on the webpage with a liability waiver and release. She subsequently sustained injuries during a USA Hockey-sponsored game and sued USA Hockey.

USA Hockey filed a motion for summary judgment, arguing the terms of the liability waiver and release, to which Berenson agreed when she registered on the USA Hockey website, released it from liability. Berenson argued USA Hockey had not shown that she had executed the waiver and release. While she did not dispute that she completed the online registration process the year she was injured, she testified that she could not “remember” if she had specifically agreed to the terms of the waiver and release.

In reply, USA Hockey did not produce an original, duplicate, or screen print out of Berenson’s application; rather, USA Hockey submitted an affidavit from one of its employees who testified that it was impossible to complete the online registration process without executing the page with the waiver and release. The employee also confirmed that Berenson completed the online registration the year she was injured.

The trial court granted USA Hockey’s motion for summary judgment since it was undisputed that Berenson could not have completed the online registration without expressly agreeing to the waiver and release.  The court stated “. . . the best evidence rule does not require production of a copy of the electronically executed agreement to the exclusion of all other proof of agreement to its terms.”

Photo Credit: Thanks go to Mrs. Gemstone at Flickr.