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.

Illinois Waiver Law: The Importance of the Language that Defines the Scope of a Waiver

By Doyice J. Cotten

Patricia Cizek visited the North Wall Rock Climbing Gym to attempt some bouldering. She fell or dropped from the wall and landed with one foot on the mat and one off; she broke her ankle. It was her first day of bouldering. She sued alleging negligence as well as willful and wanton conduct (Cizek v. North Wall, Inc., 2018).

Even as a beginner, she understood that rock climbing involved being at a height higher than the ground.

Snow Tubing Case Helps to Clarify the Tough Maine Waiver Law

By Doyice Cotten

 Karrol Leadbetter went snow tubing at Family Fun Management, a Maine amusement center. She suffered an injury and sued the center alleging negligence, gross negligence, and recklessness (Leadbetter v. Family Fun Mgmt, 2018).

The snow tube course consists of a number of parallel snow-covered tracks divided by man-made berms of snow. At the bottom of the tracks is a common runout area with a man-made pile of snow, which acts as a retaining wall to slow snow tubers at the end of their runs.

Waiver Not Against Public Policy in Pennsylvania Health Club Slip & Fall Incident

By Doyice Cotten

Dolores Vinson, a member of LA Fitness, slipped and fell when she stepped on a wet mat. She sued the club for negligence in their maintenance (Vinson v. Fitness & Sports Clubs, LLC, 2018). The club claimed protection based on a liability waiver in the membership agreement. The trial court granted the LA Fitness motion for summary judgment.

Pennsylvania Law

The Pennsylvania Supreme Court has named three conditions that must be met for a waiver to be enforceable.

Does Your Waiver Make any Promises to Your Clients?

By Doyice Cotten

It is not uncommon in liability waivers for the writer to include such language as a promise of safety, an effort to make the activity safe, a promise of safe equipment, an assurance of good supervision, and/or assertion of well-trained staff or instructors.  However, as you will learn in this post, this is not a very good idea. While this case deals only with Alaska waiver law, the inclusion of such promises in your waiver  might bear reconsideration.

How Long does a Waiver Last?

  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.

Two Health Club Cases Clarify Delaware Waiver Law

By Doyice Cotten

Reminder: There is a new Fitness Law Academy Newsletter designed specifically for fitness professionals. It is written by Dr. JoAnn Eickhoff-Shemek, a fitness industry authority. And the best news of all —  its FREE!.    Click here for your free subscription!   djc

In 2016, the Delaware Supreme Court addressed a case in which a Planet Fitness health club member was injured when a cable broke on a seated rowing machine (Ketler v.

Connecticut Court Admits Waiver to Show Plaintiff Knew the Inherent Risk of Horseback Riding

By Doyice J. Cotten

Stefana Pecher took riding lesson at Showtime Stables which was owned by Rhea Distefano. After about six lessons, the horse ridden by Pecher was acting lazy, was not obeying commands, and was reacting slowly. She was told by the instructor to use the crop to tap lightly on the shoulder of the horse; the horse bolted, causing her to fall and injure herself.

During the trial, the defense entered into evidence a photo of a warning sign posted at eye level at the barn door and a liability waiver signed by the plaintiff.