Other Voices

Pertinent articles by other professionals in the field

Three Approaches to Providing an Opportunity to Bargain

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).

Are Waiver/Releases Worth The Paper They Are Written On?

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.

Duty and Liability

by Charles R. Gregg

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.

Before You Sign the Sports Facility Lease Agreement

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”.

Before You Sign the Sports Facility Lease Agreement

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.

NJ Club Saved by Waiver

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,

Michigan Court Rules in Child Drowning Case (Pool Owner Not Liable) and Cheerleader Injury Case (Coaches and Organization May Be Held Liable)

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.