Waivers

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

WAIVERS/RELEASES IN EQUINE ACTIVITIES

We are fortunate to have a new article by the lady who is perhaps the foremost expert in equine law – Julie Fershtman. While the article relates specifically to equine waivers, waiver law is the same regardless of the sport or activity.

By

Julie I. Fershtman, Esq.

Introduction

Stables, race tracks, show managers, horse trainers, riding instructors, and individual horse owners often seek ways to reduce their liability risks. 

Wisconsin Court Rules Waiver Signed by Race Participants Enforceable

By
Alexander “Sandie” Pendleton

Thanks to Sandie Pendleton for this up-to-the-minute look at Wisconsin waiver law. This article first appeared at Sandie Pendleton’s sports-law related website www.releaselaw.com.

On February 10, 2011, the Wisconsin Court of Appeals held enforceable a waiver signed by two subsequently-injured participants at an auto race.

The case, Beer v. La Crosse County Agricultural Society, arose out of a race held at the La Crosse County fairgrounds.

Waiver Law in Pennsylvania: Personal Trainer vs. Licensed Physical Therapist

By Doyice Cotten

A 2010 court ruling in Pennsylvania (Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252) illustrated a difference in the effectiveness of waivers depending upon who the relying party is. The plaintiff was injured while under the care of a personal trainer provided by L.A. Fitness. She alleged that the trainer taught her an improper exercise, failed to properly assist or sport her, and that his negligence caused her shoulder injury.

Updating Parental Waiver Law — Part II

By Doyice Cotten

Several court rulings as well as a new statute have affected the parental waiver landscape recently. Three states were discussed in an article posted last week. Here, we will address recent cases affecting parental waiver law in Alabama, Texas, and Pennsylvania. Parental waiver law for all states is covered in depth in Waivers & Releases of Liability, 7th ed.

Alabama

J.T., a minor, was injured while riding his motorcycle on a motocross course at Monster Mountain MX Park.

Updating Parental Waiver Law — Part I

By Doyice Cotten

Several court rulings as well as a new statute have affected the parental waiver landscape recently. The purpose of this two-part article is to bring you up-to-date on changes in the law. Three states are discussed below and Alabama, Texas, and Pennsylvania will be covered next week. Parental waiver law for all states is covered in depth in Waivers & Releases of Liability, 7th ed.

Iowa

The Iowa Supreme Court has recently clarified parental waiver law in Iowa (Galloway v.

Negligence per se and Waivers – They Don’t Always Mix

By Doyice Cotten

While we know that liability waivers are vital tools in the risk management process, we sometimes forget that waivers do not work for all situations. For instance, we know that a waiver will not be enforced if it conflicts with statutory law. We also know that in most states waivers will not protect a provider from liability for gross negligence. And we know that in many states, waivers signed by parents on behalf of minor children will not protect.

Foot Loose: Legal Liability Issues Relating to Barefoot Exercise

Alexander “Sandie” Pendleton
Sports, Fitness & Recreational Team Leader
Kohner, Mann & Kailas, S.C.
Milwaukee, Wisconsin

Christopher McDougall’s bestselling book Born to Run, and the extensive discussion therein regarding the reported benefits of barefoot running, have helped to ignite a new exercise trend (craze?). Fitness center owners are being asked if members can exercise barefoot, or are just seeing members working out barefoot in areas of the facility where, until recently, no one wanted to do so.

When a Waiver will NOT Protect: Strict Products Liability

Doyice Cotten

The Colorado Supreme Court recently addressed the question of whether a waiver of liability would protect a product manufacturer against a strict products liability claim (Boles v. Sun Ergoline, Inc., 2010 Colo. LEXIS 73). The case involved a lady who was injured while in a tanning booth. The district court had enforced the waiver as if the claim were  one for damages alleging simple negligence.

Savanah Boles brought suit against Sun Ergoline,

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,