John Sadler, Sadler & Company, Inc.
This is Part II of a 2 part series about liability waivers. An authority in the field of sport insurance, John shares some things he has learned about waivers while in the insurance business.
Assumption Of Risk (AOR) As A Defense To Negligence
The second protective purpose of a waiver/release is to trigger the Assumption Of Risk Defense under tort law – in other words – to provide evidence that the sports organization gave adequate warnings of the risks so that an argument can be made that the participant assumed those risks.
This is the second in a 2-part series by Daniel Hale. The title says it all!
By Daniel Hale
5. Online Insurance Carriers Have No Duty To Advise The Policyholders of Coverage Adequacy
Most policyholders rely on their insurance agents to provide much needed expertise on technical insurance issues. In fact, most independent agents strive to develop a personal and long term relationship with each of their policyholders.
Alexander “Sandie” Pendleton
Thanks to Sandie Pendleton for this up-to-the-minute look at Wisconsin waiver law. This article first appeared at Sandie Pendleton’s sports-law related website www.releaselaw.com.
On February 10, 2011, the Wisconsin Court of Appeals held enforceable a waiver signed by two subsequently-injured participants at an auto race.
The case, Beer v. La Crosse County Agricultural Society, arose out of a race held at the La Crosse County fairgrounds.
Waivers fail for many reasons, but the most common reason for failure is that they are poorly written. Often ambiguity is the major culprit, but in a recent California case one might conclude the waiver failed because it was NOT ambiguous. In fact it was too narrowly written.
Raffi Huverserian and his son Ari rented scuba diving equipment from Catalina Scuba Luv on March 30, 2005 (Huverserian v. Catalina Scuba Luv,
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.