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.

Will My Waiver Protect Me When someone has an Ordinary “Slip and Fall?”

By Doyice Cotten

It is well-established that the common law imposes a duty of care on business owners to maintain safe premises for their business invitees (clients, customers, or potential clients).  Visitors to a place of business generally fall into one of three categories and in most states, the duty owed the visitor depends upon the “category” into which the visitor falls.

The three categories are, first, the invitee — one who has an express or implied invitation to enter the business (e.g.,

Most Waivers Are Adhesion Contracts – So What?

By Doyice Cotten

There is much confusion and misinformation about adhesion contracts as they relate to the enforceability of liability waivers in recreation, fitness, and sport activities. There is a common misconception that adhesion contracts are against public policy and subsequently unenforceable.

What is an Adhesion Contract?

An adhesion contract is a “standardized contract which is imposed and drafted by the party with superior bargaining power and which relegates the subscribing party only the option of signing the contract or rejecting it” (i.e.,

Waiver enforced under Maritime Law in Puerto Rico Jet ski Case

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.

Puerto Rico Jet Ski Waiver Emphasizes the Inherent Risks of the Activity

By Doyice Cotten  

The primary purpose of a liability waiver is to protect the entity from liability for injuries resulting from the negligence of the entity and its employees. A secondary function of the waiver is to help provide protection from liability for injuries resulting from the inherent risks of the activity. Technically, the provider is not usually liable for injuries associated with the inherent risks – provided the injured party was familiar with those inherent risks. The listing of inherent risks in the waiver can provide evidence that the participant was aware of the inherent risks;

Summary Judgment Rulings in Recent New Jersey Waiver Cases when Gross Negligence is Alleged

By Doyice Cotten

Plaintiffs often allege both negligence and gross negligence when injured and seeking redress. New Jersey law generally holds that “contracting parties are afforded the liberty to bind themselves as they see fit.” Waivers of provider negligence, however, are disfavored in law and must be subjected to close judicial scrutiny. Such waivers must reflect the intent of the party giving up rights to do so voluntarily and with knowledge of the consequences. Further the signer of a contract,

U.S. District Colorado Court of Appeals Addresses Unsigned Waiver (Disclaimer) on Lift Ticket

 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,

Should the Specific Risks of the Activity Be Listed in the Waiver?

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.