Tag Archives: bargaining power

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.

Oregon Supreme Court Rules on Enforceability of Liability Waivers

By Doyice Cotten

Author’s Note: It is rare that a court clearly defines and explains waiver law in a state. The Oregon Supreme Court made an effort to explain both the law and their reasoning; and, unlike many courts, explained the law in an understandable manner. The reader is urged to read the entire case. Much can be learned from the opinion.   From the opinion, it would seem that the Oregon Supreme Court is moving closer to the restrictive stances held by courts in Wisconsin,

Connecticut Court Relies on Reardon Ruling in Declaring Health Club Waiver Violates Public Policy

By Doyice Cotten

A woman was injured while working with a trainer employed by Planet Fitness. The trainer had lifted Butler onto a bosu balance ball and walked away. As she dismounted from the ball, she fell and suffered injury.

She filed suit claiming negligence; Planet Fitness countered with a liability waiver signed by the plaintiff as a defense. Part of the waiver language stated that the signer released Planet Fitness “from any responsibility or liability for any injury or damage to myself,

D.C. Court Rules on Opportunity to Negotiate, Gross Negligence/Recklessness, and Lack of Consideration

By Doyice J. Cotten

In a case  in which a client was injured on a Segway[1] tour, the U.S. District Court for the District of Columbia addressed several aspects of waiver law in the District of Columbia. (Hara v. Hardcore Choppers, LLC (2012))

Opportunity to Negotiate

The court said that the waiver in the case was not against public policy. Regarding unequal bargaining power, the court stated that it did not suppose that the parties were of equal bargaining power;

Employer/Employee Waiver Enforced Despite Unequal Bargaining Power

By Doyice Cotten

Northwest Nazarene University required Morrison and some co-workers to participate in a “team building exercise” that included, among other things, a climbing wall activity. Morrison fell, was seriously injured, and sued alleging negligence (Morrison v. Northwest Nazarene University, 2012 Ida. LEXIS 82).

The university had required that all participants sign a waiver, an indemnity agreement and an assumption of risk agreement.  Idaho law states “’Freedom of contract is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.’ Agreements exempting a party from liability for negligence will be upheld unless .

Waivers, Employer/Employees, and Bargaining Position

Waivers, Employer/Employees, and Bargaining Position

By Doyice Cotten

This article is taken from Waivers & Releases of Liability 7th ed. by Doyice and Mary Cotten.

Employers are considered to have a superior bargaining position over employees. For this reason, as a general rule, waivers which employers require employees to sign are generally considered to be in violation of public policy and unenforceable. However, three “sub-categories” under employees will be examined here.