Wanton Conduct at Issue in a Motocross Case

By Doyice Cotten

Sport, recreation and fitness professionals often encounter the term “negligence” and most have at least a general idea of what negligence entails; but sometimes one comes across the term “willful and wanton act” (sometimes referred to as wanton act) and most don’t really understand what it means. A 2011 Alabama case gives us  a good example of what might be considered a willful and wanton act (J.T., Jr. v. Monster Mountain,

Hawaii Case Illustrates Why Admiralty Law Can be Important to Recreation Providers

By Doyice Cotten
Mark Strickert took his wife and two children on a snorkeling trip. He and his wife signed waivers on behalf of themselves and their children. The trip consisted of six scuba divers and six snorkelers (including the four Strickerts), two crew members and Mr. Neal (the party in charge) who stayed on the boat while the others entered the water. At some point the weather worsened causing extremely high winds and large waves. Neal signaled the snorkelers and divers to return to the boat.

Resort and Tour Disclaimers Are Usually Upheld

By Doyice Cotten

Disclaimers on tickets or signs usually are not enforced as waivers of liability. The same, however, is not true of disclaimers in contracts used by resorts or tour operators. This post addresses a disclaimer used by Unique Vacations and SRI (Sandals Resorts) and another disclaimer used by Vantage Travel Service. The first applied to a resort vacation in St. Lucia and the second to a tour Europe.

In Santora v.

Potential Problems in Informed Consent Language

By Doyice Cotten
While on a recent trip to Namibia (Africa), I had occasion to visit a Physiotherapy clinic, which seems to be quite similar to physical therapy clinics in the States. They require clients to sign an informed consent agreement prior to treatment. An informed consent is NOT the same as a waiver of liability for negligence; it is an agreement by which one releases the provider from liability for injuries resulting from the “informed treatment risks” – not negligence.

Club Thought it was Protected Against Negligent Emergency Care

By Doyice Cotten

All health clubs need a sound risk management program aimed at the prevention of injuries. Included in that program should also be the use of a comprehensive, broadly worded liability waiver – just in case the risk management program does not work perfectly. In the following case, Locke v. Life Time Fitness, Inc. (2014), we find that Illinois waiver law requires that a waiver be specific and put the client on notice of the risks faced.

Agritourism Liability: A Question in Georgia

By Doyice Cotten

Recently I stopped at an operation in South Georgia in which the operator charges one dollar each for patrons to enter a fenced area.  There patrons can view an assortment of animals including a horse, a donkey, a bison, a water buffalo, goats, and a few more animals. After I paid the admission, my wife and I took my grandson in. At the entry, a sign was posted. I was familiar with equine and other sport liability statutes,

Missouri Supreme Court Provides an Interesting Ruling Regarding a Gross Negligence and Reckless Disregard Claim

By Doyice Cotten
Cynthia DeCormier signed up for a motorcycle training course, signed a liability waiver, and attended the course. On the day of the course there was rain, drizzle, snow, and mist; there was also ice on the pavement. As a consequence, she and her bike took a spill and she suffered injury. She subsequently sued alleging negligence, gross negligence, and reckless disregard (DeCormier v. Harley-Davidson Motor Company Group, Inc., 2014 Mo.

Contract Secrets You Learn When Your When Your Cruise Ship Flounders

Doyice Cotten

It is always news when a cruise ship has trouble at sea. Whether it is a disease outbreak, a fire on board, running aground, or engine failure, there are unhappy people. Of course, the cruise ship offers passengers some refund, credit toward another cruise, or other compensation for the danger, inconvenience, or pain suffered. This will satisfy many passengers; many, however, will go away dissatisfied.

A few will sue the cruise line.

Surprising Ruling in New Jersey Case

By Doyice Cotten

James Walters joined a YMCA and signed a membership agreement containing a waiver. About three years later, he suffered injury when he slipped on a step while walking to the YMCA pool – allegedly because the slip resistant rubber on the stairs was worn off the bottom step. The trial court granted summary judgment ruling that the waiver language protected the club against liability for negligence (Walters v. YMCA,

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),