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?

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,

Lack of Equipment Inspections and Concern for Client Safety Is a Shortcut to Lawsuits

By Doyice Cotten

Lawsuits against health clubs are abundant – with dozens each year. There are many allegations in such suits ranging from failure to supervise, to employing uncertified personnel, to bad judgment of personal trainers, and many more causes of injury. One of the most frequent causes of injury has two prongs: 1) failure to regularly (as in daily) inspect the premises  and equipment; and 2) failure to maintain and keep equipment in good repair.

The photos in this post illustrate a potential problem that could result in a client injury and in a possible negligence lawsuit.

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.,

Most Waivers Are Adhesion Contracts – So What?

By Doyice Cotten

There is much confusion and misinformation about adhesion contracts as they relate to the enforceability of liability waivers in recreation, fitness, and sport activities. There is a common misconception that adhesion contracts are against public policy and subsequently unenforceable.

What is an Adhesion Contract?

An adhesion contract is a “standardized contract which is imposed and drafted by the party with superior bargaining power and which relegates the subscribing party only the option of signing the contract or rejecting it” (i.e.,

Life of Coach Saved with AED

by Doyice Cotten

The Longview News-Journal recently reported on life-saving measures taken by quick-reacting athletes and trainers when the track and field coach collapsed on the field. Once again, quick thinking, coupled with the availability of an AED, resulted in saving a life.

The fact that Longview (Texas) High School had an Automated External Defibrillator readily available (and personnel trained in its use) was the key to avoiding a tragic death. As soon as the coach collapsed,

Summary Judgment Rulings in Recent New Jersey Waiver Cases when Gross Negligence is Alleged

By Doyice Cotten

Plaintiffs often allege both negligence and gross negligence when injured and seeking redress. New Jersey law generally holds that “contracting parties are afforded the liberty to bind themselves as they see fit.” Waivers of provider negligence, however, are disfavored in law and must be subjected to close judicial scrutiny. Such waivers must reflect the intent of the party giving up rights to do so voluntarily and with knowledge of the consequences. Further the signer of a contract,

Do Texas Courts Enforce Waivers for Gross Negligence?

By Doyice Cotten

Last week’s post, Court in Texas Trampoline Park Case Enforces Waiver for Gross Negligence, involved an occasion when a Texas Appellate court did enforce a waiver for gross negligence. But, when one looks at previous court rulings, it becomes clear that there are two schools of thought on the matter of whether waivers can protect against liability for gross negligence.

Some Texas courts feel that gross negligence is not a separate cause of action from that of negligence.

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),

Risk Management Breaches Result in Tragedy

 By Doyice Cotten

This post is a little different from my usual post – not so much about the results of a waiver case as about provider responsibility. I hope this post impresses upon providers of sport, recreation, and fitness activities the idea that having a waiver might reduce the financial risk of the organization, but does not relieve the provider of the responsibility to make every effort to protect the participant against unnecessary risk of injury.