How Ambiguous Language Can Cause a Waiver to Fail

By Doyice Cotten

A waiver of liability is a contract intended to relieve a service provider from liability for injuries resulting from the negligence of the provider. Such waivers are enforceable in at least 45 states providing they meet certain requisites. A major requirement in all states is that the waiver must be clear and unambiguous to be enforceable. Some examples of requirements regarding language include 1) A clear and unambiguous contract must be enforced… 2) Language must be unambiguous,

A Perfect Electronic Waiver will not Protect if the Provider cannot Authenticate the Electronic Signature

By Doyice Cotten

In several previous posts (including Established Protocol for Administering an Electronic Waiver Protects Fair when Participant is Killed), this author has commented on how the validity of electronic waivers is dependent upon following procedures by which the electronic signature of the participant can be shown to be authentic.

Facts of the Case

In each of the articles, cases in which the electronic waiver has been enforced are reported.

Online Waivers: Some Mistakes to Avoid

Alexander “Sandie” Pendleton is an attorney in Milwaukee, Wisconsin, who helps recreational opportunity providers create and properly deploy precisely-crafted waiver and other agreements. He can be reached at [email protected].

 

By Alexander “Sandie” Pendleton

Forgoing the traditional signed paper waiver agreement, and using instead an online or electronic waiver agreement, is becoming very common, and courts in several states have enforced such waiver agreements.

You Be The Judge: When Does Hunting Begin?

By Doyice Cotten

Anthony Wimmer went on a hunting trip hosted by defendant Top Gun (Wimmer v. Top Gun Guide Service, Inc., 2019). Prior to going on the trip, Wimmer read and signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. The waiver read in part:

 

I acknowledge that hunting and fishing entails known and unanticipated risks which could result in physical or emotional injury,

Waiver Fails for Virgin Islands Excursion Company

Circumstances of the Case

While their cruise ship was at St. Thomas, Katherine and Jamie Leach, along with about 20 other passengers, went on a day excursion operated by defendant Cruise Ship Excursions (CSE) aboard a 53-foot catamaran sailing from St. Thomas to St. John and back.

While boarding, the captain informed the passengers of the schedule and location of the life preservers.  While the boat was departing, the crew passed around to passengers a clip board which contained a purported waiver and release.

You Be the Judge: Injury Caused by Collapsing Massage Chair

By Doyice Cotten

Check out your waiver savvy on this case! Vicki Taylor, an Atrium employee, received a free massage provided to hospital personnel for “Hospital Appreciation Week” by MHR Solutions, LLC d.b.a. Massage Envy and Atrium Medical Center.

Prior to the massage, Vicki signed a waiver of liability which included the following language,

You understand and voluntarily accept any risks of which you have been advised about associated with your massage, or from any use of the company’s facilities,

Utah Supreme Court Reaffirms: Parental Waivers Are Not Enforceable in Utah

 By Doyice Cotten

Levi Rutherford, a minor and a highly skilled skier, suffered a brain injury when he skied into a patch of thick, wet, machine-made snow and crashed at a ski resort d.b.a. The Canyons. His parents sued alleging negligence and premises liability (Rutherford v. Talisker Canyon Finance Co., LLC, 2019).  Defendants claimed the suit was barred by the waiver signed by Rutherford’s parents and by the Utah ski statute.

Of interest in this post is the Utah Supreme Court ruling as to whether parental waivers are enforceable in Utah.

Injured Ski Patron Claims “No Consideration” when Purchase was Online and Waiver Executed Two Days Later

By Doyice Cotten

Ms. Patterson bought a ski lift ticket online, paying $57. Two days later she picked up her ticket at the resort. The front of this lift ticket contained an adhesive sticker, designed to be removed and adhered to a wicket on the ticket holder’s clothing, on which Ms. Patterson’s name, the ticket type, and a bar code were printed. The back of the lift ticket, like all lift tickets issued by Monarch Mountain on March 20,

Colorado Club Member Injured When He Steps onto a Moving Treadmill

By Doyice Cotten

Robert Wagner,  a Life Time Fitness client, suffered injury when he stepped onto a treadmill that was already in motion. No detail was given as to how the club was negligent (Wagner v. LTF Club Operations Company, Inc. (2019). Since Wagner failed to designate specific facts showing that there was a genuine issue for trial, there was no evidence that a reasonable jury could return a verdict for the nonmoving party. Consequently,

Test Your Legal IQ: Predict Whether the Court Enforced this Waiver

By Doyice Cotten

Many waivers, even otherwise well-written ones, fail because the language can be interpreted in two ways. This case provides us with a good example of such a waiver (Fresnedo v. Porky’s Gym III, 2019). The judges read the waiver and came up with two diametrically opposed interpretations. Here are the facts of the incident, some pertinent Florida waiver rulings, the waiver itself, and the arguments of the two sides – one saying the plaintiff clearly waived his right to redress;