Parental Waivers – Waivers Signed by Parents on Behalf of a Minor! Are they Enforceable in Your State?

By Doyice Cotten

At one point, maybe 25 years or so ago, it was not unusual to hear or read ——-, “Waivers are not worth the paper they are printed on!” That time has come and gone; now virtually every professional in sport, recreation, and fitness recognizes that in most states, waivers can provide valuable protection against significant financial loss as a result of injury lawsuits.

In fact, courts in about 45 states enforce well-drafted liability waivers that are voluntarily signed by adult participants in sport,

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.

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.

The Pennsylvania Supreme Court Rules that Waiver is Unenforceable in Wrongful Death Triathlon Case

By Doyice Cotten

Notice of Error: The ruling was erroneously reported in this post. The Pennsylvania Supreme Court ruled that the waiver was enforceable.

Derek Valentino drowned during the swimming leg of the Philadelphia Triathlon in 2010 (Valentino v. Philadelphia Triathlon, LLC., 2019). A wrongful death suit was filed by his children alleging negligence, gross negligence, outrageous acts, and recklessness. The trial court disallowed all except the claim of ordinary negligence.

The defense claimed protection against negligence based on the waiver and release of liability signed by Derek prior to the race.

Helping Providers to Understand a Major Defense: Assumption of Risk

 

This article was originally published on Recreation-Law.com, an excellent newsletter dealing with outdoor sport and recreation law. Its author, James H. Moss, J.D., is a well-known attorney specializing in the outdoor recreation industry. Jim has kindly granted permission to reprint the article.

Even Hikers Sue for their Injuries

By James H. Moss, J.D.

Citation: Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

State: California, United States District Court,

Kentucky Health Club Allowed To Produce Waiver To Show That The Club Did Not Breach Its Standard Of Care

 By Doyice Cotten

Lori Hassler joined Results by Design, LLC in order to begin a training regimen in the hope of “toning up” for her daughter’s upcoming wedding. She listed her goals on intake paperwork as a tighter abdomen, muscle definition in arms, and more energy. She was aware that she suffered from diabetic kidney disease. The trainers put together a coordinated exercise program, nutrition plan, and dietary supplementation (vitamins) regimen. After about six weeks on the plan,

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,