Online Waivers: Some Mistakes to Avoid

Alexander “Sandie” Pendleton is an attorney in Milwaukee, Wisconsin, who helps recreational opportunity providers create and properly deploy precisely-crafted waiver and other agreements. He can be reached at [email protected].

 

By Alexander “Sandie” Pendleton

Forgoing the traditional signed paper waiver agreement, and using instead an online or electronic waiver agreement, is becoming very common, and courts in several states have enforced such waiver agreements.

An Outline of the Assumption of the Risk Doctrine in California

By Doyice Cotten

The doctrine of assumption of risk provides liability protection for sport and recreation providers in many states. This post attempts to summarize or outline the doctrine in California and show how liability waivers fit in. Your state may be similar or your state may be one in which the doctrine is no longer followed. This outline is drawn from statements in Knight v. Jewett (1992), an important California Supreme Court case and a few more cases as noted.

Apparent Authority: Know Who is Signing the Waiver

By Doyice Cotten

Tony Coleman sued Otese, Ltd. (d/b/a Texas Raceway) for injuries he sustained at a drag strip owned by  Otese (Coleman v. Otese, Ltd, 2020). He claimed there was excessive oil on the racetrack.  The trial court granted summary judgment to the defense, in part based on the waiver signed by Coleman.

Coleman appealed making several arguments – one of which was that he had not signed the waiver.

You Be The Judge: When Does Hunting Begin?

By Doyice Cotten

Anthony Wimmer went on a hunting trip hosted by defendant Top Gun (Wimmer v. Top Gun Guide Service, Inc., 2019). Prior to going on the trip, Wimmer read and signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. The waiver read in part:

 

I acknowledge that hunting and fishing entails known and unanticipated risks which could result in physical or emotional injury,

Equine Law and Horse Sense

I want to take this opportunity to make horse owners and all involved in equine-related businesses aware of a terrific new book available from Julie Fershtman, a leading authority in equine law.

 

The book examines many legal issues related to equine law. More than 350 pages including such topics as:

  • equine activity liability acts                       
  • liability of horse owners, stables, & more
  • insurance
  • veterinary malpractice
  • attractive nuisance liability
  • land use and zoning
  • contracts,

Waiver Fails for Virgin Islands Excursion Company

Circumstances of the Case

While their cruise ship was at St. Thomas, Katherine and Jamie Leach, along with about 20 other passengers, went on a day excursion operated by defendant Cruise Ship Excursions (CSE) aboard a 53-foot catamaran sailing from St. Thomas to St. John and back.

While boarding, the captain informed the passengers of the schedule and location of the life preservers.  While the boat was departing, the crew passed around to passengers a clip board which contained a purported waiver and release.

Multiple negligent acts do not Equal Gross Negligence in the Pennsylvania Triathlon Case

By Doyice Cotten

We have written before about the distinction between ordinary negligence and gross negligence:

Ordinary negligence is the failure to use such care as a reasonably prudent and careful person would under similar circumstances. It is an unintentional act or failure to act that causes harm to another party.

Gross Negligence is an extreme form of negligence in which one fails to use the care that even a careless person would use.

Correction: Error in February 4 Triathlon Case Report

By Doyice Cotten

Please note that I erroneously reported that the Pennsylvania Supreme Court overturned the Superior Court decision (Valentino v. Philadelphia Triathlon, LLC, 2019) enforcing the waiver signed by the deceased. The court, in fact, upheld the superior court ruling enforcing the liability waiver.

Thanks go to James Moss for making me aware of my mistake.

The Pennsylvania Supreme Court Rules that Waiver is Unenforceable in Wrongful Death Triathlon Case

By Doyice Cotten

Notice of Error: The ruling was erroneously reported in this post. The Pennsylvania Supreme Court ruled that the waiver was enforceable.

Derek Valentino drowned during the swimming leg of the Philadelphia Triathlon in 2010 (Valentino v. Philadelphia Triathlon, LLC., 2019). A wrongful death suit was filed by his children alleging negligence, gross negligence, outrageous acts, and recklessness. The trial court disallowed all except the claim of ordinary negligence.

The defense claimed protection against negligence based on the waiver and release of liability signed by Derek prior to the race.

How Ambiguous Language Can Cause a Waiver to Fail

By Doyice Cotten

A waiver of liability is a contract intended to relieve a service provider from liability for injuries resulting from the negligence of the provider. Such waivers are enforceable in at least 45 states providing they meet certain requisites. A major requirement in all states is that the waiver must be clear and unambiguous to be enforceable. Some examples of requirements regarding language include 1) A clear and unambiguous contract must be enforced… 2) Language must be unambiguous,