Waivers

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

Don’t Make Your Waiver Too Narrow!

Doyice Cotten

Waivers fail for many reasons, but the most common reason for failure is that they are poorly written. Often ambiguity is the major culprit, but in a recent California case one might conclude the waiver failed because it was NOT ambiguous. In fact it was too narrowly written.

Raffi Huverserian and his son Ari rented scuba diving equipment from Catalina Scuba Luv on March 30, 2005 (Huverserian v. Catalina Scuba Luv,

Which Waiver Format is Best?

The table featured below is an excerpt from Waivers & Releases of Liability by Doyice & Mary Cotten.  Providers should examine this table closely before deciding which format they want to use for a waiver.

Comparison of Waiver Formats

Stand-Alone Waiver
Or
Participant Agreement

Waiver Within
Another Document

Group Waiver

Disclaimer

Description

One or  more pages containing only the  waiver & related information.
Exculpatory language (often just a paragraph) included within a contract or application
Exculpatory language

(often just a paragraph)at the top of the sheet with spaces below for all  members of  the group to sign
Language usually appearing on the back of a ticket disclaiming liability for injury to the participant or spectator

Advantages

1) Longer,

Waivers: Which Ones to Keep — How to Store Them – For how Long?

The following article is excerpted, in large part, from the 7th edition of Waivers & Releases of Liability by Doyice and Mary Cotten. It addresses some questions facing many providers that make extensive use of waivers.

Businesses generally do not have an unlimited amount of storage space and the questions arise:  Which records do I need to keep?  Moreover, how long must I keep them?

Which Agreements Should be Kept?

The answer to this question is simple.

Assumption of Risk – Waivers – Indemnification: What Do They Do?

This Table is excerpted from the 7th edition of Waivers & Releases of Liability by Doyice and Mary Cotten.

Have you ever wondered “What is the difference between assumption of risk and a waiver?” What about “‘What exactly is the function of a waiver?” or “What does indemnification language do?” Well, this table will explain the differences in the three concepts and will help you to see why a good “waiver” really should include all three.

Someone was Injured! Am I Liable?

This article by Doyice Cotten originally appeared in Fitness Management.  Sport, fitness, and recreation professionals often describe a situation involving an injury and ask if they are liable.  This article will help others to quickly determine if he or she might be liable in an injury situation.

Robert Craig, a 75-year-old client, was injured when the “dip station” on which he was exercising tipped over.  When Craig and the station fell backward,

Waiver Cases: Health Clubs 4 Plaintiffs 0

Doyice Cotten summarizes four recent cases involving health clubs. The first three are appellate cases from Minnesota and the fourth is a New Jersey Supreme Court case. These cases re-emphasize the importance of unambiguous waivers. One might say that two of the three Minnesota cases involve gross negligence or willful and wanton actions, but the court did not agree. Actions resulting in injury are not often deemed grossly negligent, reckless, or willful and wanton by the courts. This high threshold further increases the value of well-written liability waivers.

Fla. Statute: Parents Can Waive Inherent Risks

May 22, 2010 /24-7PressRelease/ —

In 2008, the Florida Supreme Court held that parents who sign liability waivers allowing their children to participate in risky adventure activities are endangering their children’s property and estate, and therefore not acting in their children’s best interest.  As the court noted, child liability waivers protect businesses at the expense of children, which hardly seems a reasonable balancing of interests.

Accordingly, the Florida Supreme Court held that in the absence of a statute clearly permitting child liability waivers,

Online Waiver Agreements: Not Worth the Paper They’re (Not) Written On?

This article by Alexander “Sandie” Pendleton addresses some of the concerns regarding the validity of online waivers. Mr Pendleton is with Kohner, Mann, and Kailis of Milwaukee.

Do courts enforce waiver agreements that are entered into electronically, for instance, via an online registration process? Or instead, will courts only find an agreement enforceable if the agreement is printed on a real piece of paper and signed in ink in the traditional manner?

The above questions raise a host of issues.

Michigan Supreme Court Holds Releases Signed by Parents Are Unenforceable

This article by Alexander “Sandie” Pendleton sums up some key issues involved in the recent Woodman v. Kera (2010) case in which the Michigan Supreme Court held parental waivers to be unenforceable. A five-year-old was injured in an inflatable bounce area at a birthday party. Mr. Pendleton is with Kohner, Mann & Kailas, S.C. in Milwaukee.

The Michigan Supreme Court on June 18, 2010 issued its long-awaited decision in Woodman v.

Liability Waivers and Releases: Still the Most Misunderstood Documents in the Horse Industry

Julie I. Fershtman, Attorney at Law gives accurate answers to some important questions about waivers.

Dear Readers:
A few years ago, a major equine magazine interviewed me on the topic of releases of liability (sometimes called “waivers”) that are used in equine-related activities. I have long said that liability waivers and releases are, in my opinion, the most misunderstood documents in the equine industry. To explain this further, I am re-printing a portion of my interview in this article.