Waiver Fails to Protect Sports club in a Trip and Fall Case

By JoAnn M. Eickhoff-Shemek, Ph.D., FACSM

Dr. Eickhoff-Shemek is Professor Emeritus, University of South Florida (USF) and is President of the Fitness Law Academy, LLC (www.fitnesslawacademy.com). This post originally appeared in the Fitness Law Academy Newsletter, Vol 1, Issue 4 (October, 2018). You may subscribe to the quarterly newsletter free of charge at www.fitnesslawacademy.com.

Case Brief: Crossing-Lyons v. Towns Sport International,

Negligence Standard or Recklessness Standard – Which Standard of Care Applies to Injured Spectator of a Snowmobile Race?

By Doyice Cotten

Spectators Tory Baughan and Megan MacNeill were injured while watching a snowmobile “hillclimb” racing event. They were in the designated, but unprotected, spectator area when one of the racers became dismounted from his Polaris snowmobile on his way up the hill. The driverless snowmobile continued to travel back down the hill at a high rate of speed before colliding with plaintiffs. Baughan sued claiming negligence, premises liability, gross negligence, and willful and wanton misconduct (Baughan v.

Evaluating a Waiver

By Doyice Cotten

 

In waiver cases, a court has to determine if the liability waiver does, indeed, protect the defendant from liability for negligence. In this post, we will examine a recent waiver addressed in Garvine v. Maryland, (2018) to see how courts address this task and give the reader a little insight into the sometimes complicated process of evaluation.

 

Waiver in Question

Oxford Feed &

Will My Waiver Protect Me When someone has an Ordinary “Slip and Fall?”

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, customers, or potential clients).  Visitors to a place of business generally fall into one of three categories and in most states, the duty owed the visitor depends upon the “category” into which the visitor falls.

The three categories are, first, the invitee — one who has an express or implied invitation to enter the business (e.g.,

Most Waivers Are Adhesion Contracts – So What?

By Doyice Cotten

There is much confusion and misinformation about adhesion contracts as they relate to the enforceability of liability waivers in recreation, fitness, and sport activities. There is a common misconception that adhesion contracts are against public policy and subsequently unenforceable.

What is an Adhesion Contract?

An adhesion contract is a “standardized contract which is imposed and drafted by the party with superior bargaining power and which relegates the subscribing party only the option of signing the contract or rejecting it” (i.e.,

Yikes!! An Injury — Am I Liable?

By Doyice Cotten 

Sport and recreation managers are often confused about their liability in the event of an injury. This is understandable because the law is far from simple. The intent of this post and the included table is to reduce at least some of the confusion.

First, injuries result from one of three causes. The cause of injury may be a simple accident or an “inherent risk” of the activity. In this case the provider usually has no liability providing the injured party was aware of the inherent risks of the activity.

President Trump Signs Bill Extending Liability Protection to Athletic Trainers and Sports Medicine Professionals

By Doyice Cotten

The National Athletic Trainer’s Association (NATA) has announced that President Trump (on October 5, 2018) signed the bipartisan Sports Medicine Licensure Clarity Act (H.R 302/S. 808) into law. This is important because prior to this law, “many states had no legal protection for sports medicine professionals whose jobs often require travel outside of their primary state where they are licensed.” Medical liability insurance carriers did not cover activities performed outside of the professional’s primary state.

Summary Judgment Rulings in Recent New Jersey Waiver Cases when Gross Negligence is Alleged

By Doyice Cotten

Plaintiffs often allege both negligence and gross negligence when injured and seeking redress. New Jersey law generally holds that “contracting parties are afforded the liberty to bind themselves as they see fit.” Waivers of provider negligence, however, are disfavored in law and must be subjected to close judicial scrutiny. Such waivers must reflect the intent of the party giving up rights to do so voluntarily and with knowledge of the consequences. Further the signer of a contract,

Should the Specific Risks of the Activity Be Listed in the Waiver?

By Doyice Cotten

 A 2018 New Mexico rappelling case (Dominguez v. United States, 2018) illustrates clearly why it is important that waivers warn the signing client of the risks faced in the activity.

Sarah Dominguez, a civilian, participated in a team-building activity at the Para-Rescue Academy at Kirkland Air Force Base. She informed the person in charge that she had never rappelled; she said later that she had been informed there would be no climbing involved in the activity. 

Do Texas Courts Enforce Waivers for Gross Negligence?

By Doyice Cotten

Last week’s post, Court in Texas Trampoline Park Case Enforces Waiver for Gross Negligence, involved an occasion when a Texas Appellate court did enforce a waiver for gross negligence. But, when one looks at previous court rulings, it becomes clear that there are two schools of thought on the matter of whether waivers can protect against liability for gross negligence.

Some Texas courts feel that gross negligence is not a separate cause of action from that of negligence.