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.

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,

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,

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 &

Duration of a Waiver at Issue in a Pennsylvania ATV Case

By Doyice Cotten

This author has frequently written about the duration of liability waivers. In a three-part series in 2017, posts addressed a Virgin Islands waiver written intending a one-year duration where the injury occurred after the one-year period – the court ruled it to be unenforceable; another waiver case involved a waiver which did not specify a duration and the Pennsylvania court ruled such a waiver unenforceable; and a third waiver case examined a waiver which did not state a duration – the Massachusetts court held the duration of a contract does not extend forever but only for a reasonable time (which is up to the court to determine).

Will My Waiver Protect Me When someone has an Ordinary “Slip and Fall?”

By Doyice Cotten

It is well-established that the common law imposes a duty of care on business owners to maintain safe premises for their business invitees (clients, customers, or potential clients).  Visitors to a place of business generally fall into one of three categories and in most states, the duty owed the visitor depends upon the “category” into which the visitor falls.

The three categories are, first, the invitee — one who has an express or implied invitation to enter the business (e.g.,