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),
By Doyice Cotten
In a 2018 New Jersey waiver case (Weed v Sky N.J., LLC, 2018 N.J. Super. Unpub. LEXIS 410), the primary issue revolved around the enforceability of an arbitration agreement included in the liability waiver. There were two important questions addressed. First, what is the duration of a waiver (and the arbitration agreement)? And second, who can sign a waiver on behalf of a minor.
Under New Jersey law, it is well established that parental waivers (a waiver signed on behalf of a minor by a parent or a legal guardian) are unenforceable.
By Doyice Cotten
Alexis Wiemer visited Hoosier Heights Indoor Climbing Facility in October, 2014. Weimer attended a facility orientation in which an employee, Kayli Mellencamp, conducted an employee-guided training on how to boulder, belay, and top rope climb. Wiemer then signed a Waiver form. Pertinent parts of the waiver form read:
RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto,
By Doyice Cotten
James McConnel was injured while participating in Segway Polo associated with Omni Hotels Management Corp. The issue came up as to the admissibility of the waiver signed by McConnel (McConnel v. Omni Hotels Mgmt. Corp., 2017). Since prospective waivers of liability are void as against public policy under Virginia law (Hiett v. Lake Barcroft Cmty. Ass’n, Inc., 1992), Omni asked the court to rule that the “Segway Personal Transporter Tours Liability Release Form”
By Doyice Cotten
James McConnel was injured while participating in Segway Polo associated with Omni Hotels Management Corp. The issue came up as to the admissibility of the waiver signed by McConnel (McConnel v. Omni Hotels Mgmt. Corp., 2017).
Since prospective waivers of liability are void as against public policy under Virginia law (Hiett v. Lake Barcroft Cmty. Ass’n, Inc., 1992), Omni asked the court to rule that the “Segway Personal Transporter Tours Liability Release Form was admissible with all portions relating to waiver of liability for negligence redacted.
The sport, recreation, and fitness provider has long made use of liability waivers for protection from liability for provider negligence. There is a growing trend toward the inclusion of an arbitration agreement within the waiver; however, there is considerable controversy regarding the wisdom of this inclusion. Here, the authors address some of the pros and cons of the arbitration agreement that the provider and his or her counsel should consider in deciding the issue. It may well be that the choice will vary somewhat depending upon the nature of the business entity and the state in which the business is located.
