Personal Trainer and Health Club in Illinois Survive a Claim of performing a Chiropractic Procedure

By Doyice Cotten

Gabriella Sosa-Gaines filed a negligence action against Capital Fitness and her personal trainer, Don Myles claiming injuries caused when the trainer pressed down in the area of her spine to relieve her discomfort during a training session (Sosa-Gaines v. Capital Fitness, Inc., 2019). She alleged the action was  a negligent “chiropractive type of adjustment maneuver.”

She had previously signed a membership agreement and a personal training agreement, each of which contained a waiver of liability. 

Niagara Jet Boat: Was there Gross Negligence?

By Doyice Cotten

This post examines another important issue in the Witkowski v. Niagara Jet Boat Adventures, LLC, 2020 case – Gross Negligence or Ordinary Negligence.

In the jet boat case, the Witkowski’s took a jet boat ride and Sarah Witkowski suffered injury. The reader is referred back to last week’s post for the facts of the case.

The final issue addressed in the case was the allegation that Niagara Jet was grossly negligent.

Niagara Jet Boat Accident Pits Maritime Law vs. New York State Law

By Doyice Cotten

In 2016, Sarah Witkowski and her husband, Scott, were passengers on a jet boat operated by Niagara Jet Adventures, LLC, (“Niagara Jet”) when she suffered injury. They sued alleging negligence or willful and reckless conduct. Niagara Jet moved for summary judgment based on the waiver of liability signed by Sarah (Witkowski v. Niagara Jet Adventures, LLC, 2020).

Upon arrival, they noticed a safety video playing in the background;  Sarah “looked at” and signed a waiver of liability.

An Outline of the Assumption of the Risk Doctrine in California

By Doyice Cotten

The doctrine of assumption of risk provides liability protection for sport and recreation providers in many states. This post attempts to summarize or outline the doctrine in California and show how liability waivers fit in. Your state may be similar or your state may be one in which the doctrine is no longer followed. This outline is drawn from statements in Knight v. Jewett (1992), an important California Supreme Court case and a few more cases as noted.

You Be The Judge: When Does Hunting Begin?

By Doyice Cotten

Anthony Wimmer went on a hunting trip hosted by defendant Top Gun (Wimmer v. Top Gun Guide Service, Inc., 2019). Prior to going on the trip, Wimmer read and signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. The waiver read in part:

 

I acknowledge that hunting and fishing entails known and unanticipated risks which could result in physical or emotional injury,

Multiple negligent acts do not Equal Gross Negligence in the Pennsylvania Triathlon Case

By Doyice Cotten

We have written before about the distinction between ordinary negligence and gross negligence:

Ordinary negligence is the failure to use such care as a reasonably prudent and careful person would under similar circumstances. It is an unintentional act or failure to act that causes harm to another party.

Gross Negligence is an extreme form of negligence in which one fails to use the care that even a careless person would use.

Gross Negligence Law in Pennsylvania

By Doyice Cotten

 

The Pennsylvania Supreme Court (Tayer v. Camelback Ski Corporation, Inc., 2012) addressed the issue of the

enforceability of waivers when the act in question was recklessness; it ruled that there is a dominant public policy against enforcing waivers seeking to protect reckless behavior. Unfortunately, the court left unaddressed the issue of waivers when the action involved gross negligence.

It was not until 2019 when the question was answered.

You Be the Judge: Injury Caused by Collapsing Massage Chair

By Doyice Cotten

Check out your waiver savvy on this case! Vicki Taylor, an Atrium employee, received a free massage provided to hospital personnel for “Hospital Appreciation Week” by MHR Solutions, LLC d.b.a. Massage Envy and Atrium Medical Center.

Prior to the massage, Vicki signed a waiver of liability which included the following language,

You understand and voluntarily accept any risks of which you have been advised about associated with your massage, or from any use of the company’s facilities,

Inadequate Exculpatory Language and Facility Improvements After an Incident Involving Possible Negligence

By Doyice Cotten

Lisa Garvine fell from her horse during a charity horse ride offered by Oxford Grain & Hay Company on land owned by the State of Maryland. This suit ensued (Garvine v. Maryland, 2019).

While moving to the start line, Garvine and her horse fell into a creek that was lower than the trail and hidden by undergrowth. There were no barriers or warning signs to warn riders of a culvert,

The Difference Between Ordinary Negligence and Gross Negligence

By Doyice Cotten

Most sport, recreation, and fitness professionals have an idea (though they are often incorrect) of what constitutes ordinary negligence. Many understand that

ordinary negligence is the failure to exercise the level of care that someone of ordinary prudence would have exercised under the same circumstances. Many understand that negligence is indicated by  inattention, irresponsibility, and actions that are careless.  

A California federal court (Kabogoza v. Blue Water Boating,