Waivers

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

Injured Ski Patron Claims “No Consideration” when Purchase was Online and Waiver Executed Two Days Later

By Doyice Cotten

Ms. Patterson bought a ski lift ticket online, paying $57. Two days later she picked up her ticket at the resort. The front of this lift ticket contained an adhesive sticker, designed to be removed and adhered to a wicket on the ticket holder’s clothing, on which Ms. Patterson’s name, the ticket type, and a bar code were printed. The back of the lift ticket, like all lift tickets issued by Monarch Mountain on March 20,

Kentucky Supreme Court Rules Parental Waivers Relied Upon by Commercial Entities Are NOT Enforceable

By Doyice Cotten

 The Kentucky Supreme Court is the latest court to record an opinion regarding the enforcement parental waivers (a waiver signed by the parent of a child releasing the activity provider from liability for subsequent injury suffered by the child). In this case, the child E.M., the child of Kathy Miller was injured while participating at a trampoline park (IN RE: Kathy Miller v. House of Boom Kentucky, LLC, 2019).

The issue was whether a pre-injury liability waiver signed by a parent on behalf of a minor child is enforceable under Kentucky law.

Club Liability Regarding Childcare Programs

By Doyice Cotten

Health clubs and other sport-, recreation-, and fitness-related businesses or organizations often provide child care programs for pre-school or older children in order to better accommodate the parent. They often require the parent to sign a liability waiver. Of course, such parental waivers are not enforceable in many states; in fact, they are commonly enforced in only about 15 states.

Management should consult their local attorney for two reasons: first, to learn if parental waivers are enforceable in that state,

Colorado Club Member Injured When He Steps onto a Moving Treadmill

By Doyice Cotten

Robert Wagner,  a Life Time Fitness client, suffered injury when he stepped onto a treadmill that was already in motion. No detail was given as to how the club was negligent (Wagner v. LTF Club Operations Company, Inc. (2019). Since Wagner failed to designate specific facts showing that there was a genuine issue for trial, there was no evidence that a reasonable jury could return a verdict for the nonmoving party. Consequently,

Test Your Legal IQ: Predict Whether the Court Enforced this Waiver

By Doyice Cotten

Many waivers, even otherwise well-written ones, fail because the language can be interpreted in two ways. This case provides us with a good example of such a waiver (Fresnedo v. Porky’s Gym III, 2019). The judges read the waiver and came up with two diametrically opposed interpretations. Here are the facts of the incident, some pertinent Florida waiver rulings, the waiver itself, and the arguments of the two sides – one saying the plaintiff clearly waived his right to redress;

Tough Mudder’s Waiver Prohibited by NY GOL § 5-326

By Doyice Cotten

In the June 14 post (Do You Have a “Landmine” in Your Electronic Waiver?), we focused on electronic waivers. The case, Scotti v. Tough Mudder Inc. (2019), however, dealt also with whether the waiver was enforceable in light of New York’s General Obligations Law § 5-326. The law provides:

[e]very covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing,

Defective Rowing Machine & No “Out of Order” Sign — Waiver Protected

By Doyice Cotten

AnneMichelle Johnson, a member of Gold’s Gym Rockies, LLC, sustained an injury when trying to use a rowing machine. She set her usual resistance, tried to pull, heard a pop in her back, and the pull bar did not move. She set resistance at zero, tried to pull again, and it did not move. About that time an employee came over and told her it was broken and he was there to fix it.

She found her back was severely injured and filed a premises liability suit alleging negligence (Johnson v.

Illinois Racetrack Protected from Negligence Liability by Liability Waiver

By Doyice Cotten

Amber Rady, the wife of a racecar driver, sued Southern Illinois Raceway, Inc., for negligence after being injured while in the pit area of the racetrack. Her husband was driving in the event and she signed a waiver in order to be admitted into the restricted pit area. While in the pit area, she stepped into a hole filled with water and subsequently sued the racetrack for negligence (Rady v. S. Ill. Raceway,

Tennessee Supreme Court Establishes New Standards for Waiver Enforcement

By Doyice Cotten

Courts in Tennessee have long held that waivers of liability for negligence are enforceable; in fact, waivers were not disfavored and the bar for enforcement was fairly low. Things may be changing because the Tennessee Supreme Court, in a non-sport case (Copeland v. HealthSouth/Methodist Rehab. Hosp., 2018), reiterated that the public policy in Tennessee has historically favored freedom of contract.  Nevertheless, the court made it emphatically clear that “not all exculpatory agreements should be enforceable,” and established new criteria for enforcement that are now in effect.