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.

A Reason Waivers Sometime Fail — Incident is Beyond the Scope of a Waiver and/or Not Within the Contemplation of Plaintiff

By Doyice Cotten

We know that in most states, a well-written waiver of liability will protect a sport, recreation, or fitness provider from liability for injuries to an adult resulting from the ordinary negligence of the provider. Such waivers, however, are not limitless; there are situations and circumstances in which even a well-written waiver will fail to provide protection for the negligent provider. The following Illinois appellate case (Offord v. Fitness International, LLC,,2015) illustrates one circumstance in which a waiver fails to protect.

Do the Waiver-signing Patron and the Sport Business Have Equal Bargaining Power?

By Doyice Cotten

In contract law, it is generally considered manifestly unfair if a stronger party has an advantage in bargaining power over a weaker party. Thus, a court may intervene by setting aside or modifying the contract to restore equity.

What effect does this have on liability waivers where one party (the provider) requires that the patron sign a waiver releasing the provider from liability in the event of an injury caused by the negligence of the provider?

Promises of Safety Can Disable Your Waiver

By Doyice Cotten

The Alaska Supreme Court has provided a 6-Element test for liability waivers. One of these elements is that “the release agreement must not represent or insinuate standards of safety or maintenance.”  In other words, watch the language of the waiver and do not promise the patron they will be safe from injury.

Langlois v. Nova River Runners, Inc.

In Langlois v. Nova River Runners, Inc.

New York Law that Can Prevent Enforcement of Waivers GOL § 5-326.

By Mary Cotten

In New York, liability waivers relieving a service provider of liability for its own negligence are generally enforceable. However, sport, recreation, and fitness providers who do business in New York are familiar with one major exception, New York General Obligations Law § 5-326. This statute prohibits waiver enforcement in certain situations; most notably for places of amusement or recreation at which an admission fee is charged.  The law provides:

Every covenant, agreement or understanding in or in connection with,

What Makes a Waiver Adhesionary – and consequently unenforceable?

 

By Mary Cotten

A waiver of liability in the sport, recreation, or fitness industry can usually be accurately described as a standardized agreement printed on the company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining by the signer. Unfortunately, this is also the definition of a contract of adhesion. Worse news yet, adhesionary contracts in most states are against public policy and unenforceable. But, for the good news, courts are consistent in holding that sport,

Enforcement of Health Club Waivers of Liability Challenged by New Jersey Supreme Court Judge

By Doyice Cotten

Courts in most states will enforce well-written liability waivers signed willingly by adults. Nevertheless, many people argue strongly against this protection for service providers. This post presents good arguments by one judge opposed to health club immunity from liability granted by such waivers.

Current New Jersey case law supports the enforcement of health club liability waivers. In fact, the Supreme Court of New Jersey recently determined to accept a stipulation for dismissal following a settlement of the matter by the parties.

Four Common Waiver Formats: Which is Best for Your Business?

By Doyice Cotten

Thousands of agreements which waive the liability of sport, recreation, and fitness providers are utilized each day; but not all waivers look alike. There are at least four commonly used formats for liability protection. Each format has advantages and disadvantages — consequently, the formats are not equally effective. In this post, I compare the formats so that the reader may decide if he or she is using the best possible type of liability protection.

Common Formats

The common formats are 1) the stand-alone waiver of liability,