Waivers

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

Injured Party Did Not Sign the Waiver – What Happens Now?

This article was taken from Waivers & Releases of Liability 7th ed. and updated for SportWaiver.com. Click SportWaiver for a limited time special price on the book.

By Doyice Cotten

Sometimes one person signs a waiver for himself or herself and for others, but the person injured or killed is the non-signing party.  For instance, many health and fitness clubs utilize a waiver that is located within a membership contract and have the head of the household sign the contract. 

Waivers: Adhesionary Contracts are Enforceable

This article was taken from Waivers & Releases of Liability 7th ed. and updated for SportWaiver.com. Click SportWaiver for a limited time special price on the book.

By Doyice Cotten

It was just a few years ago that most professionals in recreation, sports, and fitness thought that liability waivers were worthless. Now, of course, most understand that waivers can provide liability protection for the service provider in most states.

There are still a lot of erroneous ideas regarding waivers.

Three Approaches to Providing an Opportunity to Bargain

By  Alexander “Sandie” Pendleton

Waivers have failed, at least in part, due to the failure of the signer to have an opportunity to bargain over the terms of the contract. (Atkins v. Swimwest Family Fitness, 2005) Several tactics have been suggested to prevent a waiver from being adhesionary or unconscionable due to the lack of opportunity to bargain.

On the issue of bargaining, importantly, the Atkins decision talks in terms of “the form itself must offer the opportunity for bargaining” (para.25).

NY GOL 5-326 and Apartment Building Gyms

By

Doyice Cotten and Mary Cotten

In Roer v. 150 West End Avenue Owners Corp. (2010 N.Y. Misc. LEXIS 6353), Jason Roer brought action seeking damages for personal injuries sustained in the basement gym of the apartment building where he and his wife reside. While exercising on a treadmill in the gym, he was caused to fall and suffer injury when a loose exercise ball was pulled beneath the belt of his treadmill. He had signed a waiver intended to relieve management of liability for negligence contained in his gym membership contract.

Are Waiver/Releases Worth The Paper They Are Written On?

Part II

By

John Sadler, Sadler & Company, Inc.

This is Part II of a 2 part series about liability waivers. An authority in the field of sport insurance, John shares some things he has learned about waivers while in the insurance business.

Assumption Of Risk (AOR) As A Defense To Negligence

The second protective purpose of a waiver/release is to trigger the Assumption Of Risk Defense under tort law – in other words – to provide evidence that the sports organization gave adequate warnings of the risks so that an argument can be made that the participant assumed those risks.

Electronic Waivers – More Cases

By Doyice Cotten and Mary Cotten

We have previously addressed the question “Do online electronic waivers work?” (see Online Waiver Agreements: Not Worth the Paper They’re (Not) Written On?, Online Waivers/Electronic Signatures in NY,  and Waivers: Do Electronic Signatures Work?). There have been at least three recent cases addressing the issue.

Two Florida cases addressed the issue. In Hinely v. Florida Motorcycle Training, Inc. (2011 Fla.

NJ Club Saved by Waiver

A patron’s fall off a stationary bike meets a court’s support of waiver protection for clubs.

By John T. Wolohan
This January, 2010, article written by John Wolohan illustrates the value of  an effective waiver when an injury occurs.

Why do courts in some jurisdictions fail to uphold waivers, while other courts will accept them in most cases? Often, the reason is a belief that waivers encourage a lack of care. As a result, a court will closely scrutinize and invalidate a waiver if it is found to violate public policy or is overly broad,