Waivers

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

New Hampshire Court Enforces Unsigned Ski Waiver

by Doyice Cotten

The enforceability of waivers on the back of tickets has been addressed on Sportwaiver.com on several occasions. We know that, in general, waivers that are signed are safer and more likely to be enforced; however, it seems that ski lift ticket waivers are enforced in a number of states. We have found that the answer to the question depends upon the state in which the incident occurs. Most recently, we examined the issue in Colorado.

Another Waiver Fails because the Waiver Failed to Include the Word “Negligence”

by Doyice Cotten

In a 2019 Texas case involving an accident on a  fishing charter boat from New Pelican Charters (New Pelican Charters, LLC  v. Unknown Claimants, 2019) The injuries occurred when the boat struck a shrimp boat. It was in navigable waters, thus admiralty law was appropriate. Both claimants had signed a liability waiver prior to boarding the vessel. The waiver read:

“I, the undersigned, have been informed and understand that there are inherent risks and hazards associated with offshore party fishing and boating.

Weakness in AED Statute Focuses on a Problem

Estiban Mejia suffered a fatal cardiac arrest while exercising at a 24 Hour Fitness gym. A California statute (H&S Code sec. 104113) requires that every “health studio” acquire an  automatic external defibrillator (AED) and train personnel to use the AED. Mejia’s estate (collectively, plaintiffs) sued the alleged owners and operators of the gym alleging among other claims, that the club failed to comply with the statute. The trial court entered a judgment in favor of the club. This is the appeal.

“Anguish” Failed to be an Effective Substitute for “Negligence” in Ohio Case

By Doyice Cotten

Beatrice Oliveri, was given two free sessions to work out at OsteoStrong. She suffered from osteoporosis and her doctor advised her to be careful. She completed a wellness assessment and signed the following waiver of liability:

I am physically capable of participating in an exercise program or the OsteoStrong system. I have either received permission from my doctor to perform the exercise and the OsteoStrong system or I decided to participate in the OsteoStrong program without consulting my physician and I assume all responsibilities for my decision to engage in the OsteoStrong program.

3-inch Gap in Sauna Floor: Was It Ordinary or Gross Negligence?

By Doyice Cotten

Cynthia MacAdams, age 75, signed a YMCA waiver prior to using the sauna. The floor consisted of two separate platforms made of wood slats on top of a concrete base; they could be lifted and pushed apart for cleaning, but were not pushed back together after cleaning. This resulted in a 3 inch gap in the flooring.  When she got ready to leave, one of her feet went into the gap causing her to fall onto her right side.

Overbroad Waivers and Releases

By Doyice Cotten

Waivers and releases sometimes fail because the party that drew up the waiver made the waiver overbroad. Whether overbroad because it attempts to protect too many parties or because it attempts to protect against essentially “any reason whatsoever.” Of course, what is acceptable in a waiver varies from state to state. The following two non-sport waivers or releases serve to illustrate some of the standards existing in New York State.

 Guerra v.

Gross Negligence Claim in California Motocross Case Fails

By Doyice Cotten

Scott Champion and some other motocross racers filed suit against Feld Entertainment, Inc. claiming injury because defendants, in order to dry the track, used caustic lime on the soil and failed to mix it properly (Champion v. Feld Motor Sports, Inc., 2021). Feld argued that the waiver signed by plaintiffs protected against claims for ordinary negligence; further, plaintiffs failed to plead gross negligence.

California Gross Negligence Law

The Court then set out to ascertain whether plaintiff has sufficiently stated a claim.

Washington Supreme Court Determines Whether a Planet Fitness Waiver Was Conspicuous

By Doyice Cotten

Carol McCoy joined Planet Fitness (PF) and signed a liability waiver intended to relieve PF for liability for its own negligence. The waiver was included as part of a membership agreement that contained a banner containing the capitalized and bolded letters  “RELEASE OF LIABILITY” and “ASSUMPTION OF RISK.”

The second paragraph of the waiver provision reads:

I understand that I am not obligated to sign this agreement and should not do so if there are any unfilled blanks.

Unsigned Waiver on Lift Ticket Enforced in Colorado

By Doyice Cotten

The enforceability of waivers on the back of tickets is sometimes in question, depending upon the state involved. There are times when such waivers are enforced. One certainly can’t say they are never enforced, however, it is probably safe to say that such unsigned waivers are less likely to be enforced than are signed waivers.

Redden v. Clear Creek Skiing Corporation (2020), a Colorado case, involved a ski-lift injury in which a signed liability waiver and an unsigned waiver on a ski lift ticket were tested.

California “Boot-Camp” Fitness Patron’s Gross Negligence Claim Fails

By Doyice Cotten

Patricia Washington was injured in a “boot-camp” group fitness class taught by Alisson Rosales (Washington v. Rosales, 2020). The trial court granted summary judgment in favor of the defendant, Rosales based on the waiver of liability signed by Washington. She claimed the waiver was rendered invalid by the Health Studio Services Act (Civ. Code, § 1812.80 et. seq.). In addition, she said the court erred by shifting the burden to her to demonstrate a triable issue of fact on the issue of gross negligence.