Waivers

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

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.

A Reason Waivers Sometime Fail — Incident is Beyond the Scope of a Waiver and/or Not Within the Contemplation of Plaintiff

By Doyice Cotten

We know that in most states, a well-written waiver of liability will protect a sport, recreation, or fitness provider from liability for injuries to an adult resulting from the ordinary negligence of the provider. Such waivers, however, are not limitless; there are situations and circumstances in which even a well-written waiver will fail to provide protection for the negligent provider. The following Illinois appellate case (Offord v. Fitness International, LLC,,2015) illustrates one circumstance in which a waiver fails to protect.

Do the Waiver-signing Patron and the Sport Business Have Equal Bargaining Power?

By Doyice Cotten

In contract law, it is generally considered manifestly unfair if a stronger party has an advantage in bargaining power over a weaker party. Thus, a court may intervene by setting aside or modifying the contract to restore equity.

What effect does this have on liability waivers where one party (the provider) requires that the patron sign a waiver releasing the provider from liability in the event of an injury caused by the negligence of the provider?

Promises of Safety Can Disable Your Waiver

By Doyice Cotten

The Alaska Supreme Court has provided a 6-Element test for liability waivers. One of these elements is that “the release agreement must not represent or insinuate standards of safety or maintenance.”  In other words, watch the language of the waiver and do not promise the patron they will be safe from injury.

Langlois v. Nova River Runners, Inc.

In Langlois v. Nova River Runners, Inc.

Another Look at Club Liability on Slip & Falls

By Doyice Cotten

It is well-established that the common law imposes a duty of care on business owners to maintain safe premises for their business invitees (clients or potential clients). Justification of this is that the law recognizes that an owner is in a better position to prevent harm than is the invitee. Courts in most states recognize, however, that participation in sports will result in injuries and grant businesses providing sport, recreation, and fitness activities permission to contract away their liability for injuries resulting from provider negligence through the use of waivers of liability.

New York Law that Can Prevent Enforcement of Waivers GOL § 5-326.

By Mary Cotten

In New York, liability waivers relieving a service provider of liability for its own negligence are generally enforceable. However, sport, recreation, and fitness providers who do business in New York are familiar with one major exception, New York General Obligations Law § 5-326. This statute prohibits waiver enforcement in certain situations; most notably for places of amusement or recreation at which an admission fee is charged.  The law provides:

Every covenant, agreement or understanding in or in connection with,

What Makes a Waiver Adhesionary – and consequently unenforceable?

 

By Mary Cotten

A waiver of liability in the sport, recreation, or fitness industry can usually be accurately described as a standardized agreement printed on the company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining by the signer. Unfortunately, this is also the definition of a contract of adhesion. Worse news yet, adhesionary contracts in most states are against public policy and unenforceable. But, for the good news, courts are consistent in holding that sport,

What if the Client does not Read English?

By Mary Cotten

The question of the effectiveness of a waiver signed by a non-reader or a non-English reader is a concern for sport, recreation, and fitness providers.  Courts generally hold that a person who signs a contract is bound by it whether they read it or not.

This was one of the issues before the U. S. District Court in a 2016 New Jersey case, Kang v. LA Fitness.  Kang, who could not read or understand English,