New Minnesota Law Voids Some, But Not All, Waivers

Alexander T. Pendleton, Kohner, Mann & Kailas, S.C.

An attempt by a group of Minnesota legislators to amend Minnesota law so as to void all waiver-of-liability agreements has failed.  Instead, the legislature adopted a bill that provides that any agreement between parties for a “consumer service” (including a recreational activity), which agreement purports to waive or release liability resulting from conduct that constitutes “greater than ordinary negligence,” is against public policy, and is therefore void and unenforceable.

State Waiver Laws Differ: An Illustration

By Doyice Cotten

Just this week I was told by a health club employee that “Waivers are not worth the paper they are written on.” I had not heard that bit of erroneous information in some time; most sport, recreation, and fitness professionals today have at least a general idea that waivers can be effective in protecting an enterprise from liability for injuries.

The fact is that in at least 45 states, a well-written waiver signed by a assenting adult can effectively protect an activity provider from liability for injuries resulting from the ordinary negligence of the activity provider.

Resorts, Tours, and Agency Law

By Doyice Cotten

It is common practice for hotels and resorts around the world to offer optional tours to guests through activity providers. These types of tours include such activities as snorkeling, nature tours, tubing, sightseeing, and any number of other activities. It is not uncommon for a guest to be injured on such tours and seek compensation from the hotel/resort. Whether the injured guest wins or not depends upon the relationship between the hotel/resort and the activity provider – whether the provider is an agent of the hotel/resort or is an independent contractor operating on its own.

News Flash: Parental Waiver Enforced in Delaware

By Doyice Cotten

Jahndee Hong and her husband joined an athletic club and signed a liability waiver. In addition to the names of her and her husband,  the membership listed the names of all three of their children. Subsequently, she left her child playing on the indoor playground equipment at the club. He fell from a piece of equipment and broke his arm.

She filed suit alleging negligence by the club.( Hong v. Hockessin Athletic Club,

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.

Niagara Jet Boat Patron Challenges Waiver on Negligence, Violation of a Safety Statute, Breaching a Condition of a Contract, and Gross Negligence

By Doyice Cotten

Scott and Sarah Witkowski and their son rode a Niagara Jet Adventures(referred to as Niagara) jet boat after having signed a waiver of liability. The boat hit a large wave throwing Scott and the son into Sarah causing injury.  The Witkowskis sued Niagara alleging negligence and gross negligence. They also alleged negligence per se claiming Niagara violated a safety statute (This was not properly pled and was dismissed.)

The Waiver

Pertinent parts of the waiver read:

“In consideration of participating in whitewater,

Liability Waivers 101 (2018 Update)

By Doyice Cotten

Where there are fitness, recreation, and sport activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in three ways.  First, the provider should institute a sound risk management program which includes an approach toward reducing the likelihood of injury as much as possible.  Secondly, they should purchase financial protection through liability insurance. Third, they should use an agreement by which the client agrees to relieve the provider of liability for participant injury – the document should include an assumption of risk (for inherent risks),

Which States “Require” the Use of the Term “Negligence” in Waivers

By Doyice Cotten

Sportwaiver has, on a number of occasions, emphasized the importance, or even the necessity, of specifying within the waiver that the signer is releasing the provider from liability for injuries resulting from the negligence of the provider. In this post, we are re-emphasizing this need. The reader can check below to see what the courts in the reader’s state seem to require currently.

Statutes and the case law in the following states (or jurisdictions) have not yielded enough information for us to determine if courts require the use of the term “negligence” to be used.

Hawaii Statute Prohibiting Waivers Enforced in Scuba Case

By Doyice Cotten

In a recent ruling, the U.S. District Court of Hawaii ruled that a liability waiver could not protect a scuba diving business from liability for negligence (Hambrook v. Smith, 2015). William Savage died while scuba diving with Hawaiian Scuba Shack; his wife, Sandra Hambrook filed suit against the company as well as PADI.

Savage had signed a liability waiver which the plaintiff claimed was unenforceable against public policy because it violated a state statute prohibiting liability waivers in recreational activities.

Waiver Clearly Specifying Risks Enforced in NY Case

By Doyice Cotten

Last Week’s Post (Admiralty Law Trumps GOL 5-326 Statute in NY Jet Boat Waiver Case) focused on fact that federal admiralty law supersede  state law (including New York’s G.O.L. 5-326. We look at this case again (Brozyna v. Niagara Gorge Jetboating, LTD., 2011 U.S. Dist. LEXIS 111546) focusing this time on the language of the waiver and other risk management steps taken by the provider.Courts in many states require that the waiver language warn the signer of the inherent risks of the activity involved.