Waivers NOT Containing the Word “Negligence” Fail in 3 Recent New York State Cases

By Doyice Cotten

Some waivers protect; others fail to protect. There are many reasons waivers fall short of providing the protection intended by the provider.  Some reasons include gross negligence involved, violation of statutory duty, unequal bargaining power, unconscionable contract, no opportunity to bargain, employer/employee relationships and many more. Most common, however, is that the language used in the waiver was ambiguous.  Courts in most states specify that to be enforced, the waivers must clearly and unambiguously describe the intent of the two parties.

Understanding Negligence and Liability: “Causes of Injury” (Part 3)

By Doyice Cotten

In Parts 1 and 2 of this series, we addressed the issue of negligence. This post presents explains that there are 3 causes of injury and the possible liability associated with each.

Injury and risk may be placed into three categories. These categories are 1) inherent risks, 2) risks arising from negligent behavior of the provider, and 3) risks arising from extreme or aggravated provider behavior that goes beyond ordinary negligence.

Understanding Negligence and Liability: “Determining Negligence” (Part 2)

 By Doyice Cotten

In last week’s post Understanding Negligence and Liability (Part 1), we addressed this issue of negligence. This post presents another example to help the reader better understand the concept[1].

The following illustration regarding Happy Holiday Stables should help the reader to better understand what constitutes negligence.


To illustrate, suppose Happy Holiday Stables rents a horse to a novice rider for a trail ride.

Understanding Negligence and Liability — (Part 1)

By Doyice Cotten

Health clubs, personal trainers, rafting companies, parasail companies, trampoline parks, bowling alleys, skating rinks, city recreation departments, horseback riding stables, martial arts instructors, snowmobile providers, and ski resorts:  what do these entities have in common? They are all sport or recreation providers who should be concerned with liability. Each provides a service with which injuries are not uncommon. The question often asked is “If someone gets hurt, will I (or my company) by held liable and have to pay money?” The purpose of this brief article is to help the provider answer this question for him- or herself.

What Does Your Waiver Protect Against? Inherent Risks – Ordinary Negligence – Acts Greater than Ordinary Negligence

By Doyice Cotten

There are literally hundreds of waiver cases in which the waiver protected the provider from liability for ordinary negligence by the provider. In the Salinger case below, the waiver specifically stated that Grace Farms was released from liability for negligence (meaning ordinary negligence) and would have protected the provider from such liability. However, the plaintiff alleged “greater than ordinary negligence,” which in Minnesota meant willful and wanton conduct. In most states, waivers do not protect against gross negligence,

Florida Waiver Law: Must the Waiver Include the Term “Negligence?”

By Doyice Cotten

When discussing liability waivers, the question often arises “Does the waiver have to include the term ‘negligence’ or ‘neglect’ in order to protect against liability for negligent acts by the provider?” The answer actually varies depending upon the state involved. Courts in more than 20 states either require the terms or strongly encourage their use.[1] Florida is one state in which more is involved; there are five appellate court districts and four of the five require such language.

Use the Word “Negligence” in Kentucky Waivers!

By Doyice Cotten

Courts in some states require that the word “negligence” be included in a waiver. Some strongly urge the use of the term. Others simply specify that the intent of the waiver to cover negligence must be clear.

A recent Kentucky case involving a paintball injury (Bowling v. Asylum Extreme, L.L.C., 2011 Ky. App. Unpub. LEXIS 801) addressed the issue of whether the waiver must specifically refer to the “negligence” of the provider in the waiver.

Waivers, Negligence per se, and Safety Statutes

By Doyice J. Cotten

In January of this year, we posted an article that dealt with waivers and negligence per se.  This article, which originally appeared in Fitness Management magazine, also relates to negligence per se.

Reoven Capri suffered injury when he slipped and fell on the pool deck while walking to the pool.  He returned to the pool the next day and found an accumulation of algae around the drain on the pool deck where he fell. 

Negligence per se and Waivers – They Don’t Always Mix

By Doyice Cotten

While we know that liability waivers are vital tools in the risk management process, we sometimes forget that waivers do not work for all situations. For instance, we know that a waiver will not be enforced if it conflicts with statutory law. We also know that in most states waivers will not protect a provider from liability for gross negligence. And we know that in many states, waivers signed by parents on behalf of minor children will not protect.

Book Cover image


Greatly Expanded – 292 Pages
How to have a more Effective Waiver
Evaluate your Current Waiver
Many Changes in:
    State Waiver Laws
    State Waiver Law for Minors
Likelihood of Enforcement
      (Is a waiver likely to be enforced in your state?)

Informed Consent
Electronic Waivers
Expanded Gross Negligence Sections
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Go to the books section of this website to order by Paypal or check.  Price of $73 includes Priority Shipping.