Tag Archives: gross negligence

Is the Word “Negligence” Required for Waivers in New York Courts?

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By Doyice Cotten

In 2016, Michelle Kalinkina, a professional model agreed to have a public haircut and styling demonstration. During the haircut, the stylist cut Kalinkina’s neck causing physical injury and scarring. She subsequently sued for damages alleging negligence and gross negligence (Kalinkina v. Martino Cartier Enterprises, LLC, 2017 U.S. Dist. LEXIS 95670).

Cartier provided a waiver signed by Kalinkina as a defense against the negligence claim. The waiver read:

I am providing modeling services for International Designs Corp.

University Study-Abroad Student Drowned in Costa Rica

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By Doyice Cotten

Note: This is the third consecutive post (involving law in three states in three types of activity) in which assumption of risk has played a major role.

20-Year-old Erik Downes, college student at Oglethorpe University, drowned in the Pacific Ocean while he was in Costa Rica attending a study-abroad program. His parents brought a wrongful death suit against the university alleging negligence and gross negligence. Oglethorpe argued that 1) it owed no legal duty to Downes;

Assumption of Risk Determines Ruling in a Washington Tubing Case

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By Doyice Cotten

This case has some similarities to the Swigart v. Bruno California case in last week’s post.  Each case was determined by an assumption of risk and not by a waiver of liability.

Pellham participated in an inner tube float in which his tube struck a fallen log in the water. The plaintiff sued the rental company claiming that the defendants owed him a duty to warn about a fallen log in the river and for gross negligence (Pellham v.

Check Your LIABILITY IQ: Was it Ordinary Negligence or Gross Negligence in Climbing Wall Case?

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By Doyice Cotten

In a Michigan rock wall climbing injury case (Alvarez v. LTF Club Operations Company Inc., 2016), the plaintiff had climbed the wall and started to belay down when his harness broke because he had it on backwards and incorrectly hooked to the belay system. He fell from the wall and was seriously injured. Subsequently, he filed suit claiming the waiver of liability of ordinary negligence he signed was not applicable because LTF was guilty of gross negligence.

Massachusetts Skydiving Waiver Case Yields Some Interesting Results Regarding: Opportunity to Bargain, Unconscionability, & Strict Liability

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By Doyice Cotten

Tricia Cahalane was seriously injured while performing a tandem skydiving activity. In the tandem skydive, she was attached to Marcus Silva, an employee, by a harness. During the skydive, Silva performed a “hook turn;”  Hook turns were allowed at that time, but have since been prohibited. When she landed, she broke the femur in each leg. Prior to the skydive, she signed a waiver releasing Skydive Cape Cod from liability for any injury incurred. She was given the opportunity to avoid signing the waiver for an additional fee of $750,

Indiana Waiver Law as to Gross Negligence

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By Doyice Cotten

Indiana law regarding waivers and extreme forms of negligence (gross negligence, reckless conduct, willful/wanton conduct and intentional acts) was addressed in Sportsdrome Speedway, Inc. v. Clark (2016 Ind. App. Unpub. LEXIS 363).

In this case, Sportsdrome appeal a trial court ruling denying Sportsdrome’s motion for summary judgment. Jason Clark, an employee/volunteer was injured at the racetrack when a car struck him while being propelled from the track during an accident. Clark filed suit alleging the racetrack was grossly negligent and acted in a willful and wanton manner because 1) it knew the risk faced by Clark and stationed him alone in a dangerous area and 2) because the management knew that the design and layout of the track was unreasonably dangerous.

Regular Inspections, and Complete Records!! A MUST for Health Clubs . . .

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By Doyice Cotten

In Chavez v. 24 Hour Fitness USA, Inc. (2015), Stacey Chavez was injured when the back panel of a “FreeMotion” cable crossover machine (“cross trainer”) struck her in the head. She subsequently filed suit. The machine was still in service despite a missing bracket and missing magnetic strips that were to secure the back panel.

24 Hour Fitness claimed it was not liable because she had signed a waiver of liability – a complete defense against negligence claims.

Michigan Waiver Case Examines Ordinary vs. Gross Negligence When the Steering Wheel Comes Off a Racecar

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By Doyice Cotten

Michigan courts have consistently ruled that a liability waiver can insulate a defendant against ordinary negligence. Likewise they have on many occasions held that such a release cannot protect a party against gross negligence or willful and wanton misconduct. In Gonzalez v. Rusty Wallace Racing Experience (2015 Mich. App. LEXIS 25), the Court of Appeals of Michigan considered the enforceability of two waivers signed by a plaintiff prior to engaging in the Racing Experience.

Waiver and Indemnity Agreement Upheld for Ordinary Negligence in Massachusetts Triathlon Case

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By Doyice Cotten

Richard Angelo died during the swimming portion of a triathlon organized by USA Triathlon (USAT). In spite of Richard having signed a waiver and indemnity agreement, his wife Cheryl filed suit alleging negligence, gross negligence, pain and suffering, and infliction of emotional distress (Angelo v. USA Triathlon, 2014). The waiver read:

  1. I hereby Release, Waive and Covenant Not to Sue, and further agree to Indemnify, Defend and Hold Harmless the following parties: USAT,

Missouri Supreme Court Provides an Interesting Ruling Regarding a Gross Negligence and Reckless Disregard Claim

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By Doyice Cotten
Cynthia DeCormier signed up for a motorcycle training course, signed a liability waiver, and attended the course. On the day of the course there was rain, drizzle, snow, and mist; there was also ice on the pavement. As a consequence, she and her bike took a spill and she suffered injury. She subsequently sued alleging negligence, gross negligence, and reckless disregard (DeCormier v. Harley-Davidson Motor Company Group, Inc., 2014 Mo.