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.
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,
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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.
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.
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.
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.
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,
By Doyice Cotten
The Pennsylvania Supreme Court (Tayer v. Camelback Ski Corporation, Inc., 2012) addressed the issue of the
enforceability of waivers when the act in question was recklessness; it ruled that there is a dominant public policy against enforcing waivers seeking to protect reckless behavior. Unfortunately, the court left unaddressed the issue of waivers when the action involved gross negligence.
It was not until 2019 when the question was answered.
This article was originally published on Recreation-Law.com, an excellent newsletter dealing with outdoor sport and recreation law. Its author, James H. Moss, J.D., is a well-known attorney specializing in the outdoor recreation industry. Jim has kindly granted permission to reprint the article.
Even Hikers Sue for their Injuries
By James H. Moss, J.D.
Citation: Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)
State: California, United States District Court,