Doyice Cotten summarizes four recent cases involving health clubs. The first three are appellate cases from Minnesota and the fourth is a New Jersey Supreme Court case. These cases re-emphasize the importance of unambiguous waivers. One might say that two of the three Minnesota cases involve gross negligence or willful and wanton actions, but the court did not agree. Actions resulting in injury are not often deemed grossly negligent, reckless, or willful and wanton by the courts. This high threshold further increases the value of well-written liability waivers.
This article by Alexander “Sandie” Pendleton sums up some key issues involved in the recent Woodman v. Kera (2010) case in which the Michigan Supreme Court held parental waivers to be unenforceable. A five-year-old was injured in an inflatable bounce area at a birthday party. Mr. Pendleton is with Kohner, Mann & Kailas, S.C. in Milwaukee.
The Michigan Supreme Court on June 18, 2010 issued its long-awaited decision in Woodman v.
This article by Doyice Cotten illlustrates that the language used is crucial to the enforcement of indemnification agreements.
Two recent equine cases illustrate the importance of the indemnification language used in liability waivers. In Polechek v. Schina (2010 N.J. Super. Unpub. LEXIS 674), the owner of a horse that was running loose around the track in the wrong direction attempted to keep her horse from escaping from the track. She moved into a gap in the rail of the track and shouted “Whoa.” The horse ran over her causing substantial injury.
This article by Doyice Cotten was originally published in Fitness Management. It has been updated (in red) and presents the provider with some valuable information regarding waivers.
Jody Corso was injured while performing an aerobic exercise under the direction of an aerobics instructor. She fell while using a yoga ball and when she quickly regained her feet, she injured herself. She filed suit against the United States Surgical Corporation (owner of the fitness center provided for the use of its employees),
Waivers and releases of liability can fail to protect for many reasons. Releases in three 2009 cases failed to protect because the waiver did not name the protected parties either by name or by function. These three cases can give sport, recreation, and fitness providers some guidance in writing a waiver or in evaluating a waiver currently in use.
Porter v. Dartmouth College
In Porter v. Dartmouth College (2009 U.S. Dist.
This article appeared in Fitness Management in May, 2008.
In a 2007 California waiver case, Georja Jones became a member of the Pritikin Longevity Center and Spa, a fitness center located within the Loews Santa Monica Hotel, Calif. She signed a membership agreement that consisted of several paragraphs. In paragraph seven, titled “Waiver of Liability,” Jones acknowledged that she was using the facility at her own risk, and waived the liability of the hotel.
By Doyice J. Cotten
This article appeared in Fitness Management in September, 2008.
Ning Yan fell while running on a treadmill, and died from his injuries. A representative of his estate sued, alleging that the fitness center was negligent in placing the treadmill too close to a wall. The estate contended that the treadmill belt threw Yan off the rear of the treadmill into a wall that was only 2 ½ feet from the treadmill.
The Cohen v. Five Brooks Stable court (2008 Cal. App. LEXIs 222) gave some sound advice to writers of waivers. While acknowledging that California courts hold releases of liability to a high standard of clarity, the court emphasized that “An effective release is hard to draft only if the party for whom it is prepared desires to hide the ball, which is what the law is designed to prevent. . . . A release that forthrightly makes clear to a person untrained in the law that the releasor gives up any claim against the releasee for the latter’s own negligence .
Keeping waivers crystal clear can protect you from lawsuits.
Some waivers are upheld when challenged in a court of law, while others are not. Why do some waivers pass and some fail? All waivers must meet the standard of being clear and unambiguous, and the most frequent reason for failure is that the waiver was ambiguous and poorly written. The following four cases illustrate two well-written waivers and two poorly written waivers.
What is a waiver and how is it used? Do they work? Why do they fail? How do I write an effective waiver? Get the Answers! Liability waivers, contrary to misconceptions of providers in the past, can be effective in protecting providers from liability for injuries resulting from the negligence of the provider. Waivers are inexpensive to obtain, easy to administer and store, and can help protect providers from the consequences of their own mistakes.