Waivers

Articles relating to waiver law and/or how to write an effective waiver.

Waiver Fails for Virgin Islands Excursion Company

Circumstances of the Case

While their cruise ship was at St. Thomas, Katherine and Jamie Leach, along with about 20 other passengers, went on a day excursion operated by defendant Cruise Ship Excursions (CSE) aboard a 53-foot catamaran sailing from St. Thomas to St. John and back.

While boarding, the captain informed the passengers of the schedule and location of the life preservers.  While the boat was departing, the crew passed around to passengers a clip board which contained a purported waiver and release.

Multiple negligent acts do not Equal Gross Negligence in the Pennsylvania Triathlon Case

By Doyice Cotten

We have written before about the distinction between ordinary negligence and gross negligence:

Ordinary negligence is the failure to use such care as a reasonably prudent and careful person would under similar circumstances. It is an unintentional act or failure to act that causes harm to another party.

Gross Negligence is an extreme form of negligence in which one fails to use the care that even a careless person would use.

The Pennsylvania Supreme Court Rules that Waiver is Unenforceable in Wrongful Death Triathlon Case

By Doyice Cotten

Notice of Error: The ruling was erroneously reported in this post. The Pennsylvania Supreme Court ruled that the waiver was enforceable.

Derek Valentino drowned during the swimming leg of the Philadelphia Triathlon in 2010 (Valentino v. Philadelphia Triathlon, LLC., 2019). A wrongful death suit was filed by his children alleging negligence, gross negligence, outrageous acts, and recklessness. The trial court disallowed all except the claim of ordinary negligence.

The defense claimed protection against negligence based on the waiver and release of liability signed by Derek prior to the race.

How Ambiguous Language Can Cause a Waiver to Fail

By Doyice Cotten

A waiver of liability is a contract intended to relieve a service provider from liability for injuries resulting from the negligence of the provider. Such waivers are enforceable in at least 45 states providing they meet certain requisites. A major requirement in all states is that the waiver must be clear and unambiguous to be enforceable. Some examples of requirements regarding language include 1) A clear and unambiguous contract must be enforced… 2) Language must be unambiguous,

Gross Negligence Law in Pennsylvania

By Doyice Cotten

 

The Pennsylvania Supreme Court (Tayer v. Camelback Ski Corporation, Inc., 2012) addressed the issue of the

enforceability of waivers when the act in question was recklessness; it ruled that there is a dominant public policy against enforcing waivers seeking to protect reckless behavior. Unfortunately, the court left unaddressed the issue of waivers when the action involved gross negligence.

It was not until 2019 when the question was answered.

Kentucky Health Club Allowed To Produce Waiver To Show That The Club Did Not Breach Its Standard Of Care

 By Doyice Cotten

Lori Hassler joined Results by Design, LLC in order to begin a training regimen in the hope of “toning up” for her daughter’s upcoming wedding. She listed her goals on intake paperwork as a tighter abdomen, muscle definition in arms, and more energy. She was aware that she suffered from diabetic kidney disease. The trainers put together a coordinated exercise program, nutrition plan, and dietary supplementation (vitamins) regimen. After about six weeks on the plan,

Established Protocol for Administering Electronic Waiver Protects Fair When Participant is Killed

By Doyice Cotten

The 28th District, an agency in the State of California, organizes and operates the San Bernardino County Fair and owns and operates the event location. The fair’s attractions are owned and operated by independent vendors. The vendor in this case, FD Event, owned and operated the “Free Drop Experience.” It involved jumping off scaffolding 36 feet high onto a stuntman airbag. When constructing the scaffolding for the May, 2015, fair the platform at the top was eliminated because it seemed to add too much stress to the tower.

Insufficient Language Results in Waiver’s Failure to Protect for Negligence in a Deep Sea Fishing Trip – Admiralty Law

By Doyice Cotten

Sport, recreation, and fitness businesses regularly depend upon liability waivers for protection from liability for injuries resulting from the negligence of the business. What is still astounding is the quality of some of the waivers relied upon by some businesses. Some small businesses have investments of hundreds of thousands of dollars; other businesses’ investments are in the millions. In spite of this, some are relying upon what seems to be a 25 cent waiver.

In New Pelican Charters,LLC v.

You Be the Judge: Injury Caused by Collapsing Massage Chair

By Doyice Cotten

Check out your waiver savvy on this case! Vicki Taylor, an Atrium employee, received a free massage provided to hospital personnel for “Hospital Appreciation Week” by MHR Solutions, LLC d.b.a. Massage Envy and Atrium Medical Center.

Prior to the massage, Vicki signed a waiver of liability which included the following language,

You understand and voluntarily accept any risks of which you have been advised about associated with your massage, or from any use of the company’s facilities,

Inadequate Exculpatory Language and Facility Improvements After an Incident Involving Possible Negligence

By Doyice Cotten

Lisa Garvine fell from her horse during a charity horse ride offered by Oxford Grain & Hay Company on land owned by the State of Maryland. This suit ensued (Garvine v. Maryland, 2019).

While moving to the start line, Garvine and her horse fell into a creek that was lower than the trail and hidden by undergrowth. There were no barriers or warning signs to warn riders of a culvert,