The Difference Between Ordinary Negligence and Gross Negligence

By Doyice Cotten

Most sport, recreation, and fitness professionals have an idea (though they are often incorrect) of what constitutes ordinary negligence. Many understand that

ordinary negligence is the failure to exercise the level of care that someone of ordinary prudence would have exercised under the same circumstances. Many understand that negligence is indicated by  inattention, irresponsibility, and actions that are careless.  

A California federal court (Kabogoza v. Blue Water Boating,

California Statute Regarding Hazardous Recreational Activities

By Doyice Cotten

Many are unaware of a California Statute § 831.7, which provides some liability protection for both public entities and public employees when participants are injured while participating in hazardous recreational activities. The protection has certain limitations including that the protection is limited to public entities and public employees. Also, “hazardous recreational activity” is carefully defined and, importantly, the statute lists five instances in which the liability protection does not apply.  

The statute is presented below:

West’s Ann.Cal.Gov.Code (Effective: January 1,

The Importance of a Well-written Waiver

By Doyice Cotten 

Sport, recreation, and fitness businesses regularly depend upon liability waivers for protection from liability for injuries resulting from the negligence of the business. What is still astounding is the quality of some of the waivers relied upon by some businesses. Some small businesses have investments of hundreds of thousands of dollars; other businesses’ investments are in the millions. In spite of this, some are relying upon what seems to be a 25 cent waiver.

In New Pelican Charters,LLC v.

Utah Supreme Court Reaffirms: Parental Waivers Are Not Enforceable in Utah

 By Doyice Cotten

Levi Rutherford, a minor and a highly skilled skier, suffered a brain injury when he skied into a patch of thick, wet, machine-made snow and crashed at a ski resort d.b.a. The Canyons. His parents sued alleging negligence and premises liability (Rutherford v. Talisker Canyon Finance Co., LLC, 2019).  Defendants claimed the suit was barred by the waiver signed by Rutherford’s parents and by the Utah ski statute.

Of interest in this post is the Utah Supreme Court ruling as to whether parental waivers are enforceable in Utah.

Safety for Aging Adults – Great Ways to Reduce Risks of Falls for Seniors

By Doyice Cotten

I was recently made aware of a website that should be of interest to all of us — seniorliving.org. This site should be of interest to most of our readers because we are either a senior now, hope to be a senior later, have friends or relatives who are seniors, or deal with seniors in a sport, recreation, or fitness setting.

The great thing about the site is that it can help reduce the risk of falls in both sport,

Injured Ski Patron Claims “No Consideration” when Purchase was Online and Waiver Executed Two Days Later

By Doyice Cotten

Ms. Patterson bought a ski lift ticket online, paying $57. Two days later she picked up her ticket at the resort. The front of this lift ticket contained an adhesive sticker, designed to be removed and adhered to a wicket on the ticket holder’s clothing, on which Ms. Patterson’s name, the ticket type, and a bar code were printed. The back of the lift ticket, like all lift tickets issued by Monarch Mountain on March 20,

Kentucky Supreme Court Rules Parental Waivers Relied Upon by Commercial Entities Are NOT Enforceable

By Doyice Cotten

 The Kentucky Supreme Court is the latest court to record an opinion regarding the enforcement parental waivers (a waiver signed by the parent of a child releasing the activity provider from liability for subsequent injury suffered by the child). In this case, the child E.M., the child of Kathy Miller was injured while participating at a trampoline park (IN RE: Kathy Miller v. House of Boom Kentucky, LLC, 2019).

The issue was whether a pre-injury liability waiver signed by a parent on behalf of a minor child is enforceable under Kentucky law.

Club Liability Regarding Childcare Programs

By Doyice Cotten

Health clubs and other sport-, recreation-, and fitness-related businesses or organizations often provide child care programs for pre-school or older children in order to better accommodate the parent. They often require the parent to sign a liability waiver. Of course, such parental waivers are not enforceable in many states; in fact, they are commonly enforced in only about 15 states.

Management should consult their local attorney for two reasons: first, to learn if parental waivers are enforceable in that state,

Colorado Club Member Injured When He Steps onto a Moving Treadmill

By Doyice Cotten

Robert Wagner,  a Life Time Fitness client, suffered injury when he stepped onto a treadmill that was already in motion. No detail was given as to how the club was negligent (Wagner v. LTF Club Operations Company, Inc. (2019). Since Wagner failed to designate specific facts showing that there was a genuine issue for trial, there was no evidence that a reasonable jury could return a verdict for the nonmoving party. Consequently,

Lawsuit Illustrates a “How-to” Guide for Personal Trainers

By Doyice Cotten

Personal trainers should recognize the potential for injury in their profession and strive to serve their clients safely and effectively. Gregory Pedersen, the personal trainer in Berisaj v. LTF Club Operations Company, Inc. (2019), was faced with a lawsuit by a client of 17 fitness sessions; the lawsuit alleged 1) negligence, 2) gross negligence, and 3) willful and wanton misconduct.

Plaintiff Victor Berisaj, who had been a client of LTF since 2007,