Electronic or Online Waivers: How Good Are They?

 

By Doyice Cotten

 The preferred form of waiver usage in recreation and sport businesses is quickly becoming electronic (waiver available on a computer, tablet, or online). I am asked whether electronic waivers are as valid and effective as paper waivers.  Today, such waivers are in widespread use and there is no question as to their validity. This writer has found no cases in which a waiver has failed simply because it was not a paper waiver.

Online Waiver Agreements: Not Worth the Paper They’re (Not) Written On?

This article by Alexander “Sandie” Pendleton addresses some of the concerns regarding the validity of online waivers. Mr Pendleton is with Kohner, Mann, and Kailis of Milwaukee.

Do courts enforce waiver agreements that are entered into electronically, for instance, via an online registration process? Or instead, will courts only find an agreement enforceable if the agreement is printed on a real piece of paper and signed in ink in the traditional manner?

The above questions raise a host of issues.

Online Waivers/Electronic Signatures in NY

In a 2008 case (Stephenson v. Food Bank for New York City), Devone Stephenson alleged that the league was negligent in its supervision, operation, and control of the basketball game in which he was injured. Stephenson suffered a broken jaw when an opponent suddenly punched him in the face. Stephenson alleged that there was rough play, taunting, and “trash talk” throughout the game even though his team captain asked the referees to clean up the game.

Do Texas Courts Enforce Waivers for Gross Negligence?

By Doyice Cotten

Last week’s post, Court in Texas Trampoline Park Case Enforces Waiver for Gross Negligence, involved an occasion when a Texas Appellate court did enforce a waiver for gross negligence. But, when one looks at previous court rulings, it becomes clear that there are two schools of thought on the matter of whether waivers can protect against liability for gross negligence.

Some Texas courts feel that gross negligence is not a separate cause of action from that of negligence.

Court in Texas Trampoline Park Case Enforces Waiver for Gross Negligence

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;

Oops! The Injured Client Did Not Sign the Waiver — What Now?

By Doyice Cotten

Tyrone Hill tripped over a yoga mat which had been left on the floor of a basketball court and suffered a fracture of the leg (Hill v. LA Fitness, 2018).  He sued LA Fitness alleging negligence.

LA Fitness moved for summary judgment on the basis of a liability waiver signed by Hill. Pertinent parts of the waiver follow (Bold emphasis added.):

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.

Pennsylvania Waiver Law

By Doyice Cotten

Courts in few states have given as much guidance regarding liability waivers for negligence as has Pennsylvania. Pennsylvania has many requirements for effective waivers, but its courts consistently enforce well-written waivers that follow these guidelines.

Validity of Waivers

The Pennsylvania Supreme Court addressed the validity of waivers of liability for negligence a number of times in the previous century and in this one. It has often specified that an exculpatory clause is valid if:

  • “it does not contravene any policy of the law,

Niagara Jet Boat Patron Challenges Waiver on Negligence, Violation of a Safety Statute, Breaching a Condition of a Contract, and Gross Negligence

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,

Liability Waivers 101 (2018 Update)

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),

Importance of Listing all Protected Parties in Your Waiver

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.