A Tale of Two Florida Water Sport Waivers

By Doyice Cotten
When I travel, I make it a habit to pick up liability waivers wherever I go. On a recent trip to Florida I visited a number of water sport businesses. Of the waivers I obtained, I would like to compare two. To protect the innocent, I will call one Oops Watersports and the other OK Watersports. The Oops agreement is primarily an equipment rental agreement; the OK agreement is a full-fledged, full page waiver agreement. The reader is invited to compare the two agreements and see which would allow him or her,

Effects of the West Virginia Nonprofit Adventure and Recreational Activity Responsibility Act §20-16-1 upon Liability Waivers

 

By Doyice Cotten

The purpose of this post is to take a close look at the West Virginia Statute §20-16-1 to 8, Nonprofit Adventure and Recreational Activity Responsibility Act. This type of act, in the past, has been referred to as a Sport Safety Act, but is more accurately described as a Shared Responsibility Statute. Such acts generally seek to provide some liability protections for specified sport providers and define legal responsibility for parties involved.

Wanton Conduct at Issue in a Motocross Case

By Doyice Cotten

Sport, recreation and fitness professionals often encounter the term “negligence” and most have at least a general idea of what negligence entails; but sometimes one comes across the term “willful and wanton act” (sometimes referred to as wanton act) and most don’t really understand what it means. A 2011 Alabama case gives us  a good example of what might be considered a willful and wanton act (J.T., Jr. v. Monster Mountain,

U.S. District Court Case Clouds Vermont Waiver Law

By Doyice Cotten

Over the past 20 years four Vermont Supreme Court rulings have made Vermont waiver law relatively clear. A recent U.S. District Court for the District of Vermont ruling (Littlejohn v. Timberquest Park at Magic, LLC, 2015) seems to have muddled the issue. It seems that occasionally federal courts get it wrong in predicting how a state supreme court would rule.

The Vermont Supreme Court (Dalury v.

For Protection under Assumption of Risk: Injured Party MUST Have Known the Risks!!!

By Doyice Cotten
One of the most commonly used defenses when someone is injured in a recreational activity is that the participant assumed the risks. While the law varies somewhat from state to state, it is generally an effective defense when the provider has not been negligent.

In a recent Pennsylvania case M.D. v. Ski Shawnee, Inc. (2015), a nine year old novice skier on an elementary school ski trip was injured when she collided with a snowmaking machine on the slope.

Hawaii Statute Prohibiting Waivers Enforced in Scuba Case

By Doyice Cotten

In a recent ruling, the U.S. District Court of Hawaii ruled that a liability waiver could not protect a scuba diving business from liability for negligence (Hambrook v. Smith, 2015). William Savage died while scuba diving with Hawaiian Scuba Shack; his wife, Sandra Hambrook filed suit against the company as well as PADI.

Savage had signed a liability waiver which the plaintiff claimed was unenforceable against public policy because it violated a state statute prohibiting liability waivers in recreational activities.

Waiver Clearly Specifying Risks Enforced in NY Case

By Doyice Cotten

Last Week’s Post (Admiralty Law Trumps GOL 5-326 Statute in NY Jet Boat Waiver Case) focused on fact that federal admiralty law supersede  state law (including New York’s G.O.L. 5-326. We look at this case again (Brozyna v. Niagara Gorge Jetboating, LTD., 2011 U.S. Dist. LEXIS 111546) focusing this time on the language of the waiver and other risk management steps taken by the provider.Courts in many states require that the waiver language warn the signer of the inherent risks of the activity involved.

Admiralty Law: How does it Relate to Recreation Waivers?

 By Doyice Cotten

Black’s Law Dictionary defines Admiralty law (also called Maritime Law) as “that system of law that particularly relates to marine commerce and navigation, to business transacted at sea or relating to navigation, to ships and shipping, to seamen, to the transportation of persons and property by sea, and to marine affairs generally.”

One might ask “What does admiralty law have to do with sport, recreation, and fitness liability waivers?” It is important to understand that admiralty law applies to activities on any navigable waterway (e.g.,

Oregon Supreme Court Rules on Enforceability of Liability Waivers

By Doyice Cotten

Author’s Note: It is rare that a court clearly defines and explains waiver law in a state. The Oregon Supreme Court made an effort to explain both the law and their reasoning; and, unlike many courts, explained the law in an understandable manner. The reader is urged to read the entire case. Much can be learned from the opinion.   From the opinion, it would seem that the Oregon Supreme Court is moving closer to the restrictive stances held by courts in Wisconsin,

NY Motocross Waiver Fails to Protect Because of GOL 5-326

By Doyice Cotten

Pablo Torres, an experienced motocross rider, signed a waiver, paid a fee to enter a race, participated in a motocross race, fell when his cycle was bumped from behind, and suffered an injury when he struck a hard object not far from the track.

Apparently, the management had put in a sprinkler system near the track, leaving an exposed PVC pipe. This was denied by management, but a witness said he saw it.