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.

Duty

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.

Lawsuit Illustrates a “How-to” Guide for Personal Trainers

By Doyice Cotten

Personal trainers should recognize the potential for injury in their profession and strive to serve their clients safely and effectively. Gregory Pedersen, the personal trainer in Berisaj v. LTF Club Operations Company, Inc. (2019), was faced with a lawsuit by a client of 17 fitness sessions; the lawsuit alleged 1) negligence, 2) gross negligence, and 3) willful and wanton misconduct.

Plaintiff Victor Berisaj, who had been a client of LTF since 2007,

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.

Risk Management Procedures Help Save Utah Snowmobile Operator from Liability

By Doyice Cotten

Matthew Rose rented a 2014 Polaris snowmobile from Summit Lodge. While approaching an opening in a wooden fence on the snowmobile, the throttle stuck on full-throttle and resulted in an injury to Rose.

The snowmobile has a thumb-operated throttle lever for acceleration; release of the lever is supposed to return the machine to idle. Normally, the machine has two methods of manual shut-off: a kill switch or by turning the key to off.