You Be the Judge – Test your Liability Knowledge

By Doyice Cotten

Occasionally, we offer the reader an opportunity to test his or her liability judgment. Take a few minutes and check this waiver and see if you think it protected the defendant health club from liability for negligence (Hoffner v. Fitness Xpress, 2016).

Situation

Charlotte Hoffner had been a member of Fitness Xpress, a health club in Michigan, for about two weeks when she slipped and fell on ice on the sidewalk in front of the club.

“Negligence or Otherwise” Language Questioned in New Jersey Health Club Case

By Doyice Cotten

Jenna Sauro, a New Jersey resident, filed a class action lawsuit against L.A. Fitness International, LLC. (Sauro v. L.A. Fitness International, Inc., 2013 U.S. Dist. LEXIS 58144). She made many allegations including that the contract violated three New Jersey statutes. One of the claims made by the plaintiff included the allegation that the waiver attempted to waive liability for intentional conduct, recklessness, and gross negligence.

This claim arose from language in the waiver:

 Member hereby releases and holds L.A.

Summary of State Agritourism Statutes

By Doyice Cotten

In recent years, many states have added statutes providing liability protection for landowners making their agricultural land available for the purposes of agritourism. Currently (June, 2016), the author has found agritourism statutes in 22 states. The statutes vary considerably among states, as can be seen from examining the following table.

Interpreting the Table

First, the column headed Limits Liability for … (column 3) shows that almost all specify protection for injuries resulting from the inherent risks.

We Know Delta and Greyhound are Common Carriers … But is a Zipline a Common Carrier in Illinois?

By Doyice Cotten

April Dodge was a paying customer of Grafton Zipline Adventures when the braking system failed causing April to collide with a tree and suffer injury. She sued alleging that Grafton was negligent. Grafton claimed protection from the liability waiver signed by April prior to participation to which the plaintiff asserted that the waiver was unenforceable because Grafton is a common carrier and cannot exempt itself from liability for its negligence (Dodge v. Grafton Zipline Adventures,

Regular Inspections, and Complete Records!! A MUST for Health Clubs . . .

By Doyice Cotten

In Chavez v. 24 Hour Fitness USA, Inc. (2015), Stacey Chavez was injured when the back panel of a “FreeMotion” cable crossover machine (“cross trainer”) struck her in the head. She subsequently filed suit. The machine was still in service despite a missing bracket and missing magnetic strips that were to secure the back panel.

24 Hour Fitness claimed it was not liable because she had signed a waiver of liability – a complete defense against negligence claims.

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.