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.

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.

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,

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.

Apparent Authority: Know Who is Signing the Waiver

By Doyice Cotten

Tony Coleman sued Otese, Ltd. (d/b/a Texas Raceway) for injuries he sustained at a drag strip owned by  Otese (Coleman v. Otese, Ltd, 2020). He claimed there was excessive oil on the racetrack.  The trial court granted summary judgment to the defense, in part based on the waiver signed by Coleman.

Coleman appealed making several arguments – one of which was that he had not signed the waiver.

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.

The Pennsylvania Supreme Court Rules that Waiver is Unenforceable in Wrongful Death Triathlon Case

By Doyice Cotten

Notice of Error: The ruling was erroneously reported in this post. The Pennsylvania Supreme Court ruled that the waiver was enforceable.

Derek Valentino drowned during the swimming leg of the Philadelphia Triathlon in 2010 (Valentino v. Philadelphia Triathlon, LLC., 2019). A wrongful death suit was filed by his children alleging negligence, gross negligence, outrageous acts, and recklessness. The trial court disallowed all except the claim of ordinary negligence.

The defense claimed protection against negligence based on the waiver and release of liability signed by Derek prior to the race.

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,