Tag Archives: inherent risks

Duty and Liability (Revisited)

We are revisiting five of Reb Gregg’s previous posts on Sportwaiver.com. Nothing has changed since the article was originally posted. It provides important information for the service provider.

Doyice

by Charles R. Gregg

Readers will find that this to be an informative legal liability article. “Reb” Gregg is one of the nation’s top adventure law attorneys. This article originally appeared on Reb’s website.

Q. How do I run a good program without being sued?                                                                             

Florida Waiver Law for Minors

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By Doyice Cotten

The Florida Supreme Court (Kirton v. Fields, 2008) has ruled that parental waivers designed to protect commercial entities from liability for negligence are not enforceable. Florida appellate courts, however, have enforced parental waivers when used by schools or recreational entities (Krathen v. School Board of Monroe Country, Fla., 2007; Gonzalez v. City of Coral Gables, 2004).

In 2013, the Florida Legislature passed F.S.

Hawaii Waiver Law Clarified: Waivers Don’t Protect Against Negligence!!!

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By Doyice Cotten

Waiver law in Hawaii has been unclear for some time. In the past, waivers have been enforced in Hawaii, however, in 1997 the Hawaii Legislature passed HRS § 663-1.54 which read in part:

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public,

Alaska Supreme Court Clarifies Alaska Waiver Law in Rock Gym Case

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By Doyice Cotten

Claire Donahue (Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153) signed up for a rock climbing class at Ledgends (dba Alaska Rock Gym). She was inexperienced in climbing, but active in other sport activities.

Waiver

Prior to her first class Donahue signed a Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement. She signed it voluntarily, but failed to read it carefully.   

Utilize the “Negligence of the Provider” — But Address Negligence Risks and Inherent Risks Separately

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By Doyice Cotten

On countless occasions, this author has stressed two points. First, is the value (or even necessity) of including specific reference to the “negligence of the provider” in the exculpatory language of a waiver. In many states, the term is mandated in order for a waiver to be enforced; in others, it is strongly recommended. Alternately, in some states, general language such as “any and all claims” is sufficient. In Florida, four of its Districts require the use of the term “negligence.” In its 5th District (the district hearing this case),

Waiver Terminology (Part II)

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By Doyice Cotten

 This is Part II of this series. You will notice that while Part I consisted of seven terms that were closely related in that all were designed to protect against liability for ordinary negligence and that were for the most part synonymous, Part II consists of very different terms. I would recommend that you review Part I when you finish Part II.

Indemnity Agreement

An indemnity agreement is a contract signed prior to participation by which participant or another party agrees to reimburse the provider for any monetary loss,

Understanding Negligence and Liability: “Causes of Injury” (Part 3)

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By Doyice Cotten

In Parts 1 and 2 of this series, we addressed the issue of negligence. This post presents explains that there are 3 causes of injury and the possible liability associated with each.

Injury and risk may be placed into three categories. These categories are 1) inherent risks, 2) risks arising from negligent behavior of the provider, and 3) risks arising from extreme or aggravated provider behavior that goes beyond ordinary negligence.

What Does Your Waiver Protect Against? Inherent Risks – Ordinary Negligence – Acts Greater than Ordinary Negligence

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By Doyice Cotten

There are literally hundreds of waiver cases in which the waiver protected the provider from liability for ordinary negligence by the provider. In the Salinger case below, the waiver specifically stated that Grace Farms was released from liability for negligence (meaning ordinary negligence) and would have protected the provider from such liability. However, the plaintiff alleged “greater than ordinary negligence,” which in Minnesota meant willful and wanton conduct. In most states, waivers do not protect against gross negligence,

A Tale of 3 Waivers

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By Doyice Cotten

On a recent trip to North Carolina, I picked up a copy of their waiver from three whitewater rafting companies – Nantahala Outdoor Center, Inc. (NOC), Carolina Outfitters, Inc., and Whitewater LTD Rafting. The waiver of each company is probably adequate to protect the company from liability for injuries resulting from negligence of the operator or from the inherent risks of the operator. Some important points from each waiver will be examined here.

First Things First when Writing a Waiver

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By Doyice Cotten

Many people and businesses rely on waivers to protect against legal liability for injuries resulting from negligent acts by the business or its employees. Some of those relying think waivers will always protect; others, more realistically, realize that waivers can protect under some circumstances, but not under others. The waivers in the following three sport and recreation waiver cases failed to protect for, essentially, the same error. Look for the similarities and check your waiver for that mistake.