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.

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.

Court in New York Ski Case Rules that Parental Waivers Allowing Minors to Ski are Valid & Enforceable

By Doyice Cotten

Bryan DiFrancesco’s son was injured while on a ski lift with a ski instructor employed by the defendant Win-Sum Ski Corp [DBA Holiday Valley, Inc.]. The uncle of the boy had signed a waiver of liability and assumption of inherent risks so that the 5 year-old could ski. The boy fell from the lift and sustained severe injuries. The father subsequently filed a suit in federal court against the ski resort on behalf of the boy (DiFrancesco v.

Does an Indiana Climbing Wall Waiver Protect Against Claim Negligent Training of Employees?

By Doyice Cotten

Alexis Wiemer visited Hoosier Heights Indoor Climbing Facility in October, 2014. Weimer attended a facility orientation in which an employee, Kayli Mellencamp, conducted an employee-guided training on how to boulder, belay, and top rope climb. Wiemer then signed a Waiver form. Pertinent parts of the waiver form read:

RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto,

Two Virginia Courts Admit Redacted Waivers to Show Plaintiff Understood the Risks

By Doyice Cotten

James McConnel was injured while participating in Segway Polo associated with Omni Hotels Management Corp. The issue came up as to the admissibility of the waiver signed by McConnel (McConnel v. Omni Hotels Mgmt. Corp., 2017).  Since prospective waivers of liability are void as against public policy under Virginia law (Hiett v. Lake Barcroft Cmty. Ass’n, Inc., 1992),  Omni asked the court to rule that the “Segway Personal Transporter Tours Liability Release Form”

Can One Spouse Sign the Waiver for the Other Spouse?

By Doyice Cotten

Often both a husband and a wife attend a sport, recreation, or fitness facility to participate. The business has a requirement that everyone signs a waiver before participating. Is there a problem if one of the couple signs his or her own waiver and then signs the waiver of the spouse?

In the 2017 case, Burns v. Parks (2017 Pa. Super. Unpub. LEXIS 4043), Joseph and Dawn Burns entered Sky Zone Indoor Trampoline Park to participate.

The ABCs of Arbitration Agreements in Waivers of Liability  for Sport, Recreation, & Fitness Providers

 The sport, recreation, and fitness provider has long made use of liability waivers for protection from liability for provider negligence. There is a growing trend toward the inclusion of an arbitration agreement within the waiver; however, there is considerable controversy regarding the wisdom of this inclusion. Here, the authors address some of the pros and cons of the arbitration agreement that the provider and his or her counsel should consider in deciding the issue. It may well be that the choice will vary somewhat depending upon the nature of the business entity and the state in which the business is located.