Test Your Legal IQ: Predict Whether the Court Enforced this Waiver

By Doyice Cotten

Many waivers, even otherwise well-written ones, fail because the language can be interpreted in two ways. This case provides us with a good example of such a waiver (Fresnedo v. Porky’s Gym III, 2019). The judges read the waiver and came up with two diametrically opposed interpretations. Here are the facts of the incident, some pertinent Florida waiver rulings, the waiver itself, and the arguments of the two sides – one saying the plaintiff clearly waived his right to redress;

AEDs Required in California Schools that Offer Interscholastic Athletics

By Doyice Cotten

In 2018, California passed a law mandating that all public schools or charter schools that offer interscholastic athletics must have at least one automated external defibrillator (AED) – effective July 1, 2019. Interestingly, the legislature did not provide funding for the devices, but noted that existing law authorizes a public school to solicit and receive nonstate funds to acquire and maintain an automated external defibrillator (AED).

There has been considerable complaint about the fact that this law requires an AED,

Tough Mudder’s Waiver Prohibited by NY GOL § 5-326

By Doyice Cotten

In the June 14 post (Do You Have a “Landmine” in Your Electronic Waiver?), we focused on electronic waivers. The case, Scotti v. Tough Mudder Inc. (2019), however, dealt also with whether the waiver was enforceable in light of New York’s General Obligations Law § 5-326. The law provides:

[e]very covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing,

Defective Rowing Machine & No “Out of Order” Sign — Waiver Protected

By Doyice Cotten

AnneMichelle Johnson, a member of Gold’s Gym Rockies, LLC, sustained an injury when trying to use a rowing machine. She set her usual resistance, tried to pull, heard a pop in her back, and the pull bar did not move. She set resistance at zero, tried to pull again, and it did not move. About that time an employee came over and told her it was broken and he was there to fix it.

She found her back was severely injured and filed a premises liability suit alleging negligence (Johnson v.

Illinois Racetrack Protected from Negligence Liability by Liability Waiver

By Doyice Cotten

Amber Rady, the wife of a racecar driver, sued Southern Illinois Raceway, Inc., for negligence after being injured while in the pit area of the racetrack. Her husband was driving in the event and she signed a waiver in order to be admitted into the restricted pit area. While in the pit area, she stepped into a hole filled with water and subsequently sued the racetrack for negligence (Rady v. S. Ill. Raceway,

Tennessee Supreme Court Establishes New Standards for Waiver Enforcement

By Doyice Cotten

Courts in Tennessee have long held that waivers of liability for negligence are enforceable; in fact, waivers were not disfavored and the bar for enforcement was fairly low. Things may be changing because the Tennessee Supreme Court, in a non-sport case (Copeland v. HealthSouth/Methodist Rehab. Hosp., 2018), reiterated that the public policy in Tennessee has historically favored freedom of contract.  Nevertheless, the court made it emphatically clear that “not all exculpatory agreements should be enforceable,” and established new criteria for enforcement that are now in effect.

A Reason Waivers Sometime Fail — Incident is Beyond the Scope of a Waiver and/or Not Within the Contemplation of Plaintiff

By Doyice Cotten

We know that in most states, a well-written waiver of liability will protect a sport, recreation, or fitness provider from liability for injuries to an adult resulting from the ordinary negligence of the provider. Such waivers, however, are not limitless; there are situations and circumstances in which even a well-written waiver will fail to provide protection for the negligent provider. The following Illinois appellate case (Offord v. Fitness International, LLC,,2015) illustrates one circumstance in which a waiver fails to protect.

Do the Waiver-signing Patron and the Sport Business Have Equal Bargaining Power?

By Doyice Cotten

In contract law, it is generally considered manifestly unfair if a stronger party has an advantage in bargaining power over a weaker party. Thus, a court may intervene by setting aside or modifying the contract to restore equity.

What effect does this have on liability waivers where one party (the provider) requires that the patron sign a waiver releasing the provider from liability in the event of an injury caused by the negligence of the provider?

Promises of Safety Can Disable Your Waiver

By Doyice Cotten

The Alaska Supreme Court has provided a 6-Element test for liability waivers. One of these elements is that “the release agreement must not represent or insinuate standards of safety or maintenance.”  In other words, watch the language of the waiver and do not promise the patron they will be safe from injury.

Langlois v. Nova River Runners, Inc.

In Langlois v. Nova River Runners, Inc.