Waivers

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

Nevada Supreme Court Rules on Waiver in a Gym Membership Agreement

By Doyice Cotten

Nathan Waldschmidt was injured while using the Edge Fitness facilities and filed suit challenging the waiver he had signed previously. He claimed the waiver was ambiguous.  In 2018 the Nevada Supreme Court ruled that the waiver signed by the plaintiff was enforceable (Waldschmidt v. Edge Fitness, LLC, 2018). [Neither details of the incident nor the complete waiver was reported.]

The Nevada Supreme Court upheld the summary judgment of the lower court stating that the waiver located in the gym membership contract was unambiguous.   

The #1 Thing to Check in Your Waiver!

By Doyice Cotten

Contrary to some opinions, All Waivers Are Not Born Equal. Waivers range in length from one sentence to several pages. Some are written specifically for one particular business while others are generic and intended to be used in many situations. Some are written in legalese; others written in plain language. And some provide more types of protection than others.

While waivers may vary in length, specificity, and verbiage, one of the most important determinants of whether the waiver will protect the activity provider is one or two sentences comprising what is called the exculpatory language.

Do Waivers Protect when the Injured Party has a Disability?

By Doyice Cotten

Sometimes activity providers are reluctant to offer activities to participants with disabilities because they fear possible injury and have doubt as to whether their liability waiver would be enforceable against a person with a disability. The following is a case that is more than 20 years old, but that accurately illustrates that there is no “special waiver law” for the disabled.

Franklin Potter, a skilled and experienced handicapped skier, was injured in the National Handicapped Downhill Championships race.

Waiver in a Maritime Case due to Boat Collision fails: It did not Specify whose negligence was Protected

By Doyice Cotten

Steven Gilliam and Calvin Sanders chartered a boat from New Pelican Charters, LLC and both plaintiffs suffered back injuries when, seeing that the boat was about to collide with another fishing boat, tried to quickly move to a safer part of the boat. The collision occurred, in part, because the steering mechanism was faulty.

They filed a maritime law claim alleging negligence in that the boat was not seaworthy (New Pelican Charters v.

Personal Trainer and Health Club in Illinois Survive a Claim of performing a Chiropractic Procedure

By Doyice Cotten

Gabriella Sosa-Gaines filed a negligence action against Capital Fitness and her personal trainer, Don Myles claiming injuries caused when the trainer pressed down in the area of her spine to relieve her discomfort during a training session (Sosa-Gaines v. Capital Fitness, Inc., 2019). She alleged the action was  a negligent “chiropractive type of adjustment maneuver.”

She had previously signed a membership agreement and a personal training agreement, each of which contained a waiver of liability. 

Universities Requiring Football Players to Sign “Waiver-Type” Documents

By Doyice Cotten

A number of schools are requiring football players (and sometimes their parents) to sign an agreement relating to COVID-19. Some agreements are primarily a warning of the risk, but others seem intended to waive the liability of the university should the player contract the disease.

Ohio State University

ESPN announced that Ohio State University players and their parents were asked to sign a “Buckeye Pledge” by which they acknowledged the risk of COVID-19 and agreed to testing,

High Ropes Course Waiver Protects Provider and Builder Under Colorado Law

By Doyice Cotten

In  June, 2018, Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch. She sued Golden Bell Retreat, Cross Bearing Adventures (“CBA”), the company which constructed the course and trained employees, and it’s owner Kent McIlhany. alleging negligence (Sheldon v. Golden Bell Retreat, 2020). All three defendants claimed Ms. Sheldon’s claims are barred by a waiver and indemnification agreement signed by Sheldon.

The Waiver

The waiver read,

COVID-19 – Liability Insurance – and Waivers!

By Doyice Cotten

No one needs reminding of the national emergency relating to COVID-19 and the problems it has brought. Many providers of sport, recreation, and fitness activities are worrying about their liability in this situation.

In terms of risk management, most utilize two major tools to protect their business or organization from undue financial risk – these tools are liability insurance and liability waivers. Unfortunately, many are finding that their insurance does not cover communicable diseases and are taking a look at their waiver and wondering if it will protect them.

Hanrahan-Fox v. Top Gun Shooting Sports (2019): A Look at Missouri Waiver Law

By Doyice Cotten

Marie Hanrahan-Fox, after patronizing the shooting range operated by Defendant Top Gun Shooting Sports, alleged that she suffered irreversible hearing loss due to the inadequate hearing protection provided her by Top Gun.  She claimed that Top Gun was negligent; in addition, her husband made a claim for loss of consortium.  They also made a products liability claim against Pyramex Safety Products, LLC, which was not before this court.

Top Gun moved for Summary Judgment based on the waiver signed by the plaintiff. 

Parental Waivers – Waivers Signed by Parents on Behalf of a Minor! Are they Enforceable in Your State?

By Doyice Cotten

At one point, maybe 25 years or so ago, it was not unusual to hear or read ——-, “Waivers are not worth the paper they are printed on!” That time has come and gone; now virtually every professional in sport, recreation, and fitness recognizes that in most states, waivers can provide valuable protection against significant financial loss as a result of injury lawsuits.

In fact, courts in about 45 states enforce well-drafted liability waivers that are voluntarily signed by adult participants in sport,