Waivers, Wrongful Death, and Colorado

By Doyice Cotten

William Bradford rented a snowmobile, accidentally struck a tree, and was killed leaving behind a spouse and a son by a former spouse. The survivors filed a wrongful death claim against the rental company, On the Trail Rentals, Inc. (Salazar v. On the Trail Rentals, Inc., 2012 U.S. App. LEXIS 25880).

Prior to his death, Bradford had signed a waiver of liability which included the following pertinent language related to warning of inherent risks;

“Management will not be Responsible for Accidents” Does NOT Protect in Florida Case

By Doyice Cotten

A guest at Grand Seas Resort was injured when his chair collapsed on the patio. He sued alleging negligence and the Resort claimed protection from its exculpatory clause in the “guest license agreement.” The entire exculpatory language was “Management . . . will not be responsible for accidents or injury to guest . . . .” (Hackett v. Grand Seas Resort Owner’s Association, Inc., 2012 Fla. App. LEXIS 10111)

The trial court granted summary judgment,

Waiver Should Specify What Action is Being Released!

By Doyice Cotten

A lot rides on a liability waiver; they often determine whether the provider wins or loses a negligence suit. It is important enough that the waiver creator should take care to make certain that the waiver clearly defines the intent of the document. The following two cases clearly illustrate the importance of clarity of language. Note the brevity of the exculpatory language in each case.


In Hackett v.

Colorado Court Gives Reasons for Enforcing an Equine Waiver


By Doyice Cotten

In a recent Colorado equine injury lawsuit (Eburn v. Capitol Peak Outfitters, Inc., 2012 U.S. Dist. LEXIS 106 236), an inexperienced rider was injured when her saddle rotated to the side and caused her to fall from the horse.  The court examined the waiver she had signed and concluded that Capitol Peak Outfitters (CPO) was protected from liability for such injuries.

The court declared the waiver clearly and unambiguously expresses the parties’ intent to preclude CPO’s liability for negligent acts.

Florida Waiver Law: Must the Waiver Include the Term “Negligence?”

By Doyice Cotten

When discussing liability waivers, the question often arises “Does the waiver have to include the term ‘negligence’ or ‘neglect’ in order to protect against liability for negligent acts by the provider?” The answer actually varies depending upon the state involved. Courts in more than 20 states either require the terms or strongly encourage their use.[1] Florida is one state in which more is involved; there are five appellate court districts and four of the five require such language.

A Look at Florida Waiver Law!

This is a well-researched article pointing out some important aspects of Florida waiver law. Thanks to Nina Conte for allowing SportWaiver.com to publish this article. Nina received her law degree from Florida International and is an associate with Cole, Scott, and Kissane P.A. The article originally appeared on the firm website.  As you read the article, note that Florida is one of the few states that will enforce waivers for gross negligence. Also, note the care that must be taken in preparing a waiver in Florida.

A Change in Arkansas Waiver Law

By Doyice Cotten and Mary Cotten

In Waivers & Releases of Liability 7th ed. (Cotten, D. and Cotten, M, 2010), Arkansas was classified as a Strict state when it comes to enforcing waivers.  A recent U.S. District Court ruling upholding the waiver in Kotcherquina v. Fitness Premier Management (2012) has caused a change in the Arkansas Strict classification. In the book, the Arkansas law is summed up by the following:

The Supreme Court stated that waivers are not invalid per se,

On-Board Cruise Activities NOT Protected by Waiver

By Doyice Cotten

In March of 2011, a U.S. District Court in Johnson v. Royal Caribbean Cruises, LTD. (2011 U.S. Dist. LEXIS 28128) held that a waiver signed by Charlene Johnson relieving Royal of liability for negligence was enforceable.  The court ruled that the federal statute 46 U.S.C. 30509 (which prohibits liability waivers on cruise ships) was inapplicable because the activity involved was an ultra- hazardous, on-board surfing activity called Flow Rider and was not an essential function of the cruise ship.

First Things First when Writing a Waiver

By Doyice Cotten

Many people and businesses rely on waivers to protect against legal liability for injuries resulting from negligent acts by the business or its employees. Some of those relying think waivers will always protect; others, more realistically, realize that waivers can protect under some circumstances, but not under others. The waivers in the following three sport and recreation waiver cases failed to protect for, essentially, the same error. Look for the similarities and check your waiver for that mistake.

Avoiding Ambiguity in a Waiver

By Doyice Cotten

This article was taken from Waivers & Releases of Liability 7th ed. and updated for SportWaiver.com. Click SportWaiver for a limited time special price on the book.

Courts in most states have ruled that to be enforceable, a waiver must clearly and unambiguously express the intent of the client to relieve the provider from liability for its negligence. Ambiguity is defined as doubtfulness, or doubleness of meaning and is said to exist when reasonable persons can find different meanings in the language.