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.

Hawaii Statute Prohibiting Waivers Enforced in Scuba Case

By Doyice Cotten

In a recent ruling, the U.S. District Court of Hawaii ruled that a liability waiver could not protect a scuba diving business from liability for negligence (Hambrook v. Smith, 2015). William Savage died while scuba diving with Hawaiian Scuba Shack; his wife, Sandra Hambrook filed suit against the company as well as PADI.

Savage had signed a liability waiver which the plaintiff claimed was unenforceable against public policy because it violated a state statute prohibiting liability waivers in recreational activities.

Waiver Clearly Specifying Risks Enforced in NY Case

By Doyice Cotten

Last Week’s Post (Admiralty Law Trumps GOL 5-326 Statute in NY Jet Boat Waiver Case) focused on fact that federal admiralty law supersede  state law (including New York’s G.O.L. 5-326. We look at this case again (Brozyna v. Niagara Gorge Jetboating, LTD., 2011 U.S. Dist. LEXIS 111546) focusing this time on the language of the waiver and other risk management steps taken by the provider.Courts in many states require that the waiver language warn the signer of the inherent risks of the activity involved.

A Waiver Administration Tip

By Doyice Cotten

Usually, courts will not enforce a waiver against an injured party who did not sign the waiver; this is true even if another party “signed it for the participant.”  Thus, it is always best practice for the service provider to require that each participant sign a waiver prior to participation.

The ski resort Wild Mountain, Inc., however, got lucky in a 2014 Minnesota case involving an injured skier (Bergin v.

Risk Management: Cruise Ship Precautions for Jet Ski Tour

By Doyice Cotten

In a case involving a collision between two jet skis during a jet ski tour provided by Royal Caribbean Cruises (Royal), Royal listed the risk management steps taken in an effort to prevent injuries ( In re Royal Caribbean Cruises, LTD, 2013).  The tour consisted of a number of jet skiers in a single file follow-the-leader type tour. Providers of all sport businesses would do well to study these steps and adapt them to their sport business.

California Statute Regarding Hazardous Recreational Activities

By Doyice Cotten

Many are unaware of a California Statute § 831.7, which provides some liability protection for both public entities and public employees when participants are injured while participating in hazardous recreational activities. The protection has certain limitations including that the protection is limited to public entities and public employees. Also, “hazardous recreational activity” is carefully defined and, importantly, the statute lists five instances in which the liability protection does not apply.  

The statute is presented below:

West’s Ann.Cal.Gov.Code (Effective: January 1,

Tennessee Supreme Court Establishes New Standards for Waiver Enforcement

By Doyice Cotten

Courts in Tennessee have long held that waivers of liability for negligence are enforceable; in fact, waivers were not disfavored and the bar for enforcement was fairly low. Things may be changing because the Tennessee Supreme Court, in a non-sport case (Copeland v. HealthSouth/Methodist Rehab. Hosp., 2018), reiterated that the public policy in Tennessee has historically favored freedom of contract.  Nevertheless, the court made it emphatically clear that “not all exculpatory agreements should be enforceable,” and established new criteria for enforcement that are now in effect.

Another Look at Club Liability on Slip & Falls

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 or potential clients). Justification of this is that the law recognizes that an owner is in a better position to prevent harm than is the invitee. Courts in most states recognize, however, that participation in sports will result in injuries and grant businesses providing sport, recreation, and fitness activities permission to contract away their liability for injuries resulting from provider negligence through the use of waivers of liability.

Do You have a Liability Insurance Policy? Yes, but do you REALLY know what it says?

By James H. Moss, J.D.

James Moss is a highly recognized lawyer in the outdoor recreation industry. He is a well-known authority in the sport and recreation law field and is the author of a top book in the field, Outdoor Recreation Insurance, Risk Management, and Law. We can all learn some lessons from this article illustrating that nothing good comes from not understanding your insurance policy. Check out his popular blog Recreation-Law.com .

An event organizer of a 5K Extreme Rampage purchased an insurance policy that specifically excluded coverage for a 5K run with obstacles,

California: When a Provider Increases the Inherent Risks of the Activity

By Doyice Cotten

Jim McNeil was a professional motocross rider and jumper; he was killed in an incident in which he was attempting to make a 75 foot jump over a motorhome (McNeil v. Freestylemx.com, 2016). His motorcycle had a loss of power and his flight fell short of the landing ramp. He had performed similar jumps in about 250 shows. In an earlier litigation, this court declined to grant the defendant’s bid for summary judgment because there was an issue of fact as to whether McNeil had actually signed the waiver.