By Alexander “Sandie” Pendleton
of Kohner, Mann & Kailas, S.C.
On July 21, 2011, a Wisconsin Circuit Court granted summary judgment to Trek Bicycle Corporation in a lawsuit arising out of a mountain bike accident. The plaintiff in the case had sustained the permanent loss of the use of his legs due to an accident that occurred on a mountain bike trail system that was established and maintained by Trek.
By Alexander “Sandie” Pendleton
Waivers have failed, at least in part, due to the failure of the signer to have an opportunity to bargain over the terms of the contract. (Atkins v. Swimwest Family Fitness, 2005) Several tactics have been suggested to prevent a waiver from being adhesionary or unconscionable due to the lack of opportunity to bargain.
On the issue of bargaining, importantly, the Atkins decision talks in terms of “the form itself must offer the opportunity for bargaining” (para.25).
By Herb Appenzellar
Herb Appenzeller is the pioneer in the field of Injury, Liability, and Litigation in Sports. He is a true authority in the area of risk management in sport and publishes the newsletter, From the Gym to the Jury,
There has been much discussion regarding the “pay for play” policy by both sides — proponents and critics of the controversial issue. With all the attention given to the controversy,
Part II
By
John Sadler, Sadler & Company, Inc.
This is Part II of a 2 part series about liability waivers. An authority in the field of sport insurance, John shares some things he has learned about waivers while in the insurance business.
Assumption Of Risk (AOR) As A Defense To Negligence
The second protective purpose of a waiver/release is to trigger the Assumption Of Risk Defense under tort law – in other words – to provide evidence that the sports organization gave adequate warnings of the risks so that an argument can be made that the participant assumed those risks.
Part I
By
John Sadler, Sadler & Company, Inc..
This is Part I of a 2 part series about liability waivers. An authority in the field of sport insurance, John shares some things he has learned about waivers while in the insurance business. Note: Some of the state laws have changed since this was originally published on John’s website. Change in state waiver law is a constant.) Part II will appear next week.
Readers will find that this to be an informative legal liability article. “Reb” Gregg is one of the nation’s top adventure law attorneys. This article originally appeared on Reb’s website.
Q. How do I run a good program without being sued?
A. You can’t. People can and may sue you, with or without justification. And even the best program can make mistakes which might provoke the lawsuit.
By
John Sadler, Sadler & Company, Inc.
Part II
This is Part II of a 2 part series about the importance of indemnification in facility lease agreements. An authority in the field of sport insurance, John explains another form of indemnification and suggested insurance requirement.
Broad Form Indemnification/Hold Harmless Provision
The third option (Broad Form) is not equitable to the sports/recreation organization and may be contrary to state law in some states as it can be considered to be against public policy and “unconscionable”.
By
John Sadler, Sadler & Company, Inc.
Part I
This is Part I of a 2 part series about the importance of indemnification in facility lease agreements. An authority in the field of sport insurance, John discusses why indemnification is important to the facility operator and explains two forms of indemnification. In Part II he will explain another form of indemnification and suggested insurance requirement. Part II will appear next week.
A patron’s fall off a stationary bike meets a court’s support of waiver protection for clubs.
By John T. Wolohan
This January, 2010, article written by John Wolohan illustrates the value of an effective waiver when an injury occurs.
Why do courts in some jurisdictions fail to uphold waivers, while other courts will accept them in most cases? Often, the reason is a belief that waivers encourage a lack of care. As a result, a court will closely scrutinize and invalidate a waiver if it is found to violate public policy or is overly broad,
By Alexander “Sandie” Pendleton of KMK
The Michigan Court of Appeals recently has issued decisions in two cases involving recreational liability (Estate of Wheeler v. Central Michigan Inns, Inc., April 14, 2011, and Sherry v. East Suburban Football League, March 17, 2011). Both decisions emphasize the importance of recreational-opportunity providers being vigilant about injury risks.
The Wheeler case arose out of the tragic drowning death of five-year-old Domonique “Dom” Wheeler.