By Doyice Cotten
In waiver cases, a court has to determine if the liability waiver does, indeed, protect the defendant from liability for negligence. In this post, we will examine a recent waiver addressed in Garvine v. Maryland, (2018) to see how courts address this task and give the reader a little insight into the sometimes complicated process of evaluation.
Waiver in Question
Oxford Feed &
By Doyice Cotten
Matthew Rose rented a 2014 Polaris snowmobile from Summit Lodge. While approaching an opening in a wooden fence on the snowmobile, the throttle stuck on full-throttle and resulted in an injury to Rose.
The snowmobile has a thumb-operated throttle lever for acceleration; release of the lever is supposed to return the machine to idle. Normally, the machine has two methods of manual shut-off: a kill switch or by turning the key to off.
By Doyice Cotten
In the post last week, we looked at a waiver in a Puerto Rico jet ski case (Morgan v. Water Toy Shop, Inc., 2018). The Puerto Rican court examined the case in which the plaintiff was seriously injured in a collision with another party; the plaintiff sued the shop that rented the jet ski to the party who caused the accident. Since the incident occurred in navigable waters, the suit fell under maritime law.
By Doyice Cotten
Carolyn Raup was injured dismounting a chairlift. The lift ticket was purchased for her by her daughter and son-in-law. The ticket had a waiver on its back side and a warning on the front reading “IMPORTANT WARNING ON REVERSE.” She sued alleging negligence plus other claims. The trial court ruled that Vail was protected by the waiver language. She appealed to the U.S. Court of Appeals in this action (Raup v. Vail Summit Resorts,
By Doyice Cotten
A 2018 New Mexico rappelling case (Dominguez v. United States, 2018) illustrates clearly why it is important that waivers warn the signing client of the risks faced in the activity.
Sarah Dominguez, a civilian, participated in a team-building activity at the Para-Rescue Academy at Kirkland Air Force Base. She informed the person in charge that she had never rappelled; she said later that she had been informed there would be no climbing involved in the activity.
By Doyice Cotten
Graciela Quiroz and her sixteen-year-old son went to Jumpstreet for trampolining. Before jumping, she signed a pre-injury waiver of liability “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” After signing the waiver, Graciela attempted to do a flip and injured her neck; this resulted in paralysis from the waist down. She sued Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and for mental anguish;
By Doyice Cotten
Scott and Sarah Witkowski and their son rode a Niagara Jet Adventures(referred to as Niagara) jet boat after having signed a waiver of liability. The boat hit a large wave throwing Scott and the son into Sarah causing injury. The Witkowskis sued Niagara alleging negligence and gross negligence. They also alleged negligence per se claiming Niagara violated a safety statute (This was not properly pled and was dismissed.)
The Waiver
Pertinent parts of the waiver read:
“In consideration of participating in whitewater,
By Doyice Cotten
Where there are fitness, recreation, and sport activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in three ways. First, the provider should institute a sound risk management program which includes an approach toward reducing the likelihood of injury as much as possible. Secondly, they should purchase financial protection through liability insurance. Third, they should use an agreement by which the client agrees to relieve the provider of liability for participant injury – the document should include an assumption of risk (for inherent risks),
By Doyice Cotten
Bradford Jones and his son, Forbes, rented jet skis from The Barge, LLC, owned by David Hubert. As they began riding, Bradford was injured when he turned suddenly and stopped in front of the inexperienced boy’s jet ski. They collided, Jones was injured, and they subsequently sued The Barge, LLC, and Hubert.
Hubert had bought the business in 2006 and became the sole owner when he bought out his partner and renamed the business The Barge Watercraft Rentals.
By Doyice Cotten
Deanna Perkinson was on a trail ride with a good friend and several others when the horse her friend (Sarah Courson) was riding suddenly kicked her; the result was a broken bone and two subsequent surgeries (Perkinson v. Courson, 2018). The incident occurred during a ride organized by Cross Country Trail Ride, LLC, in Eminence, Missouri.
The two women lived in Illinois (where this suit was filed),
