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.
By Doyice Cotten
This is Part III of this series on waiver terminology. This part is intended to impress upon the sport and recreation professional the value of waivers of liability.
Why all the fuss about waivers of liability? The following California case (Padilla v. The Sports Club Company, 2008 Cal. App. Unpub. LEXIS 8150) illustrates very clearly why recreation and sports entities should use waivers.
Belinda Padilla was a member of The Sports Club Company,
By Doyice Cotten
Jahndee Hong and her husband joined an athletic club and signed a liability waiver. In addition to the names of her and her husband, the membership listed the names of all three of their children. Subsequently, she left her child playing on the indoor playground equipment at the club. He fell from a piece of equipment and broke his arm.
She filed suit alleging negligence by the club.( Hong v. Hockessin Athletic Club,
By Doyice Cotten and Mary Cotten
In Waivers & Releases of Liability 7th ed. (Cotten, D. and Cotten, M, 2010), Arkansas was classified as a Strict state when it comes to enforcing waivers. A recent U.S. District Court ruling upholding the waiver in Kotcherquina v. Fitness Premier Management (2012) has caused a change in the Arkansas Strict classification. In the book, the Arkansas law is summed up by the following:
The Supreme Court stated that waivers are not invalid per se,
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.
This case discussion is provided by Dr. Leonard K. Lucenko, a sports and recreational premises risk management and safety expert. The case title is as follows: Clinton Schriber v. Jewish Community Center of New Orleans.
In June 1997, plaintiff Clinton Schriber was participating in a recreational basketball league game at the gymnasium owned by the defendant. The defendant had rented the gymnasium to a local recreational basketball league. Each team paid an entry fee to participate in league games,
Alexander “Sandie” Pendleton
Sports, Fitness & Recreational Team Leader
Kohner, Mann & Kailas, S.C.
Christopher McDougall’s bestselling book Born to Run, and the extensive discussion therein regarding the reported benefits of barefoot running, have helped to ignite a new exercise trend (craze?). Fitness center owners are being asked if members can exercise barefoot, or are just seeing members working out barefoot in areas of the facility where, until recently, no one wanted to do so.
A fitness center injury lawsuit illustrates the importance of a proper risk management plan.
Attorney John Wolohan ([email protected]) reports on a fitness center injury lawsuit that illustrates the importance of a proper risk management plan. John is a professor of sports law and chair of the Sport Management & Media department at Ithaca College. This article was published in Athletic Business in May, 2010.
As any administrator or employee involved in the sports and recreation industry will acknowledge,
This article by Doyice Cotten was originally published in Fitness Management. It has been updated (in red) and presents the provider with some valuable information regarding waivers.
Jody Corso was injured while performing an aerobic exercise under the direction of an aerobics instructor. She fell while using a yoga ball and when she quickly regained her feet, she injured herself. She filed suit against the United States Surgical Corporation (owner of the fitness center provided for the use of its employees),
This article by Doyice Cotten originally appeared in Fitness Management, but is as timely today as ever. Owners and managers who erroneously classify parties as independent contractors when they are actually employees face stiff penalties.
Fitness Plus, Inc. offered fitness classes for corporate clients on the premises of the client. Fitness Plus would assess the needs of the client, contact one of about 30 instructors, negotiate a fee, bill the client, pay the instructor regardless of profit or loss,