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.

Arkansas Martial Arts Waiver Enforced without the Term “Negligence

By Doyice Cotten

Pedro Trujillo suffered an injury while training at TK Martial Arts Academy and died two days later. It was alleged that Pedro was injured when two teaching assistants threw him to the ground numerous times while under the supervision of the instructor – who knew Pedro’s head was striking the floor.

The plaintiff (Trujillo v. TK Martial Arts Academy, 2015) alleged negligence claiming a breach of the duty of ordinary care,

Florida Supreme Court Rules on the Need to Include “Negligence” Language in Liability Waivers

By Doyice Cotten

For some time, the appellate courts in Florida have disagreed as to whether a waiver must include the term “negligence,” “negligent acts,” or similar language in order to be enforceable. In Sanislo v. Give Kids the World, Inc. (2015 Fla. LEXIS 214), the Supreme Court of Florida ruled the use of the word “negligence” is not required. The decision came in a close 4 to 3 verdict.

The Fifth District Court of Appeals had “held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts.” The First,

Waiver and Indemnity Agreement Upheld for Ordinary Negligence in Massachusetts Triathlon Case

By Doyice Cotten

Richard Angelo died during the swimming portion of a triathlon organized by USA Triathlon (USAT). In spite of Richard having signed a waiver and indemnity agreement, his wife Cheryl filed suit alleging negligence, gross negligence, pain and suffering, and infliction of emotional distress (Angelo v. USA Triathlon, 2014). The waiver read:

  1. I hereby Release, Waive and Covenant Not to Sue, and further agree to Indemnify, Defend and Hold Harmless the following parties: USAT,

Hawaii Waiver Law Clarified: Waivers Don’t Protect Against Negligence!!!

By Doyice Cotten

Waiver law in Hawaii has been unclear for some time. In the past, waivers have been enforced in Hawaii, however, in 1997 the Hawaii Legislature passed HRS § 663-1.54 which read in part:

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public,

Kentucky Motocross Race Waiver Upheld for Negligence and Willful and Wanton Negligence

By Doyice Cotten

In 2011, Walter Brotherton worked on a voluntary basis as a mechanic for one of the racers in the Kentucky Indoor Motocross Championship.

Brotherton was injured during a practice heat while standing near the starting gate.  He and others  decided to move and watch the practice from another location inside the Arena, but at that moment a motorcyclist topped a hill and careened into the starting area injuring Brotherton.

He subsequently sued,

Include the Word ”Negligence” in the Waiver

By Doyice Cotten

Again and again I have written about the advisability of using the word “negligence” in your waiver. Actually, it is best to specify that the intent of the waiver is to relieve the provider of liability for the “negligence of the provider.”

Some waiver writers seem to be hesitant to use the actual word “negligence” – in fear, I suppose of, of scaring away patrons. In some states, of course, the word “negligence” is not required by the courts.

Utilize the “Negligence of the Provider” — But Address Negligence Risks and Inherent Risks Separately

By Doyice Cotten

On countless occasions, this author has stressed two points. First, is the value (or even necessity) of including specific reference to the “negligence of the provider” in the exculpatory language of a waiver. In many states, the term is mandated in order for a waiver to be enforced; in others, it is strongly recommended. Alternately, in some states, general language such as “any and all claims” is sufficient. In Florida, four of its Districts require the use of the term “negligence.” In its 5th District (the district hearing this case),

Waivers Upheld for Negligence in 3 of 4 Trail Ride Cases in 2013

By Doyice Cotten

Trail rides have been a risky proposition for women in 2013. As can be seen below, a well-written liability waiver for trail rides will provide protection for equine providers from liability for ordinary negligence in most states.

Utah

In Penunuri v. Sundance Partners, LTD (2013), the rider signed a pre-injury waiver prior to a guided trail ride. Lisa Penunuri was injured by falling from her horse when the horse unexpectedly accelerated to close the gap to the next rider.

Update on Whether the Word “Negligence” is Required in Florida Waivers

By Doyice Cotten

In a November, 2012 post, Florida Waiver Law: Must the Waiver Include the Term “Negligence?”, we learned that for a waiver to be enforceable, the term “negligence,” or its equivalent must be included in a waiver in all Florida districts except the 5th. In an August 16, 2013, case, the Fifth District Court of Appeals provided more information regarding Florida law (UCF Athletics Association, Inc. v. Plancher,