New York Law that Can Prevent Enforcement of Waivers GOL § 5-326.

By Mary Cotten

In New York, liability waivers relieving a service provider of liability for its own negligence are generally enforceable. However, sport, recreation, and fitness providers who do business in New York are familiar with one major exception, New York General Obligations Law § 5-326. This statute prohibits waiver enforcement in certain situations; most notably for places of amusement or recreation at which an admission fee is charged.  The law provides:

Every covenant, agreement or understanding in or in connection with,

What Makes a Waiver Adhesionary – and consequently unenforceable?

 

By Mary Cotten

A waiver of liability in the sport, recreation, or fitness industry can usually be accurately described as a standardized agreement printed on the company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining by the signer. Unfortunately, this is also the definition of a contract of adhesion. Worse news yet, adhesionary contracts in most states are against public policy and unenforceable. But, for the good news, courts are consistent in holding that sport,

What if the Client does not Read English?

By Mary Cotten

The question of the effectiveness of a waiver signed by a non-reader or a non-English reader is a concern for sport, recreation, and fitness providers.  Courts generally hold that a person who signs a contract is bound by it whether they read it or not.

This was one of the issues before the U. S. District Court in a 2016 New Jersey case, Kang v. LA Fitness.  Kang, who could not read or understand English,

Enforcement of Health Club Waivers of Liability Challenged by New Jersey Supreme Court Judge

By Doyice Cotten

Courts in most states will enforce well-written liability waivers signed willingly by adults. Nevertheless, many people argue strongly against this protection for service providers. This post presents good arguments by one judge opposed to health club immunity from liability granted by such waivers.

Current New Jersey case law supports the enforcement of health club liability waivers. In fact, the Supreme Court of New Jersey recently determined to accept a stipulation for dismissal following a settlement of the matter by the parties.

Four Common Waiver Formats: Which is Best for Your Business?

By Doyice Cotten

Thousands of agreements which waive the liability of sport, recreation, and fitness providers are utilized each day; but not all waivers look alike. There are at least four commonly used formats for liability protection. Each format has advantages and disadvantages — consequently, the formats are not equally effective. In this post, I compare the formats so that the reader may decide if he or she is using the best possible type of liability protection.

Common Formats

The common formats are 1) the stand-alone waiver of liability,

Waiver Fails to Protect Sports club in a Trip and Fall Case

By JoAnn M. Eickhoff-Shemek, Ph.D., FACSM

Dr. Eickhoff-Shemek is Professor Emeritus, University of South Florida (USF) and is President of the Fitness Law Academy, LLC (www.fitnesslawacademy.com). This post originally appeared in the Fitness Law Academy Newsletter, Vol 1, Issue 4 (October, 2018). You may subscribe to the quarterly newsletter free of charge at www.fitnesslawacademy.com.

Case Brief: Crossing-Lyons v. Towns Sport International,

Negligence Standard or Recklessness Standard – Which Standard of Care Applies to Injured Spectator of a Snowmobile Race?

By Doyice Cotten

Spectators Tory Baughan and Megan MacNeill were injured while watching a snowmobile “hillclimb” racing event. They were in the designated, but unprotected, spectator area when one of the racers became dismounted from his Polaris snowmobile on his way up the hill. The driverless snowmobile continued to travel back down the hill at a high rate of speed before colliding with plaintiffs. Baughan sued claiming negligence, premises liability, gross negligence, and willful and wanton misconduct (Baughan v.

Evaluating a Waiver

By Doyice Cotten

 

In waiver cases, a court has to determine if the liability waiver does, indeed, protect the defendant from liability for negligence. In this post, we will examine a recent waiver addressed in Garvine v. Maryland, (2018) to see how courts address this task and give the reader a little insight into the sometimes complicated process of evaluation.

 

Waiver in Question

Oxford Feed &

Risk Management Procedures Help Save Utah Snowmobile Operator from Liability

By Doyice Cotten

Matthew Rose rented a 2014 Polaris snowmobile from Summit Lodge. While approaching an opening in a wooden fence on the snowmobile, the throttle stuck on full-throttle and resulted in an injury to Rose.

The snowmobile has a thumb-operated throttle lever for acceleration; release of the lever is supposed to return the machine to idle. Normally, the machine has two methods of manual shut-off: a kill switch or by turning the key to off.

Risk Management at Two Popular Tourist Sites in Bosnia and Herzegovina

By Doyice Cotten

Bosnia and Herzegovina (hereafter referred to as Bosnia) is a beautiful country in southeastern Europe. There is much to see; but also much you need to watch for to avoid injury.

Mostar Bridge. The first popular site at which I saw a number of hazards was at and near the famous bridge at Mostar. The bridge was destroyed in the war in 1993, but has since been nicely restored (pictured here).

First,