Tag Archives: California

Hot Air Balloons: Is a Balloon a Common Carrier in California?

 

By Doyice Cotten

The issue as to whether an activity or mode of transportation is a common carrier can determine the duty owed to passengers. A recent California case (Grotheer v. Escape Adventures, Inc., 2017), addressed the issue of whether a hot air balloon is a common carrier. The court defined a common carrier of persons as anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.)

The duty that a common carrier owes to its clientele depends upon whether the ride is gratuitous or if there is a fee charged.

Adhesionary Contracts or Unconscionable Contracts: Are They Enforceable?

By Doyice Cotten

A recent New York waiver case (Lobell v. Youtube, LLC and Google, Inc., 2017 U.S. Dist. LEXIS 127327) involved the allegation that a waiver was not enforceable because it was both an adhesionary contract and an unconscionable contract. The U.S. District Court for the Southern District of New York examined the issue in light of California law (as called for by the provisions of the contract).

Adhesionary Contract

The court defined an adhesionary contract as “a standardized contract,

A Waiver is not Always Necessary! Primary Assumption of Risk

By Doyice Cotten

Kathleen Swigart entered a long distance horse riding event conducted by the American Endurance Ride Conference (AERC), a national governing and record-keeping body for “long distance horse riding.” An endurance ride is  “a highly competitive and demanding sport” in which the riders follow a specific course, collecting playing cards at set checkpoints along the route to verify having completed the entire course before crossing the finish line.

At the eight-mile checkpoint, seven horses were close together in a single line.

Evaluation of a Liability Waiver by a California Appellate Court

By Doyice Cotten

Quite often I get a request by a service provider to take a look at their waiver and tell them if I think it is adequate. So I thought many readers might like to see how a court looks at a waiver to determine if it is enforceable. A California case involved an incident at a trampoline facility; the court discussed why the waiver was valid and enforceable (Torres v. House of Air,

Woman Held to Waiver Signed by Husband in California Health Club Case

By Doyice Cotten

Sheila Brown joined 24 Hour on February 27, 2001, signing the 24 Hour Fitness USA, Inc. membership agreement containing a liability waiver.  She terminated her membership several months later; then, after a few months her son renewed her membership through his corporate membership. Her husband signed the club waiver on her behalf.

Two years later, Sheila tripped over a dumbbell that had been left on the floor and suffered injury. She filed suit against 24 Hour and claimed the waiver was unenforceable because she had not signed the waiver.

Waiver Protects Program for Youth with Disabilities for Liability for Negligence

By Doyice Cotten

Robert Rogers, an autistic child, participated in a program for youth with disabilities offered by Ability First. Robert’s grandmother (with authority from the mother) approved his participation in local neighborhood excursions and signed a waiver of liability releasing Ability from liability.

On the day of the incident, Ability took Robert on a “walking field trip” to a nearby Target store.

While walking back to Ability’s facility, Robert broke into a foot race with other Ability attendees to reach a gate in a chain link fence at an entrance to Ability’s grounds.

Group Waivers and the Risk of Fraud

By Doyice Cotten

Scott Storer was injured while riding his motorcycle on a motocross track  (Storer v. E Street MX, Inc., 2015 Cal App. Unpub. LEXIS 4029). Prior to beginning his ride, Scott was handed a clipboard and asked to sign his name.

He said the only thing on the clipboard that he could see were names of other riders that signed in. He explained there was one folded sheet of paper with signature lines at the top of the clipboard,

Regular Inspections, and Complete Records!! A MUST for Health Clubs . . .

By Doyice Cotten

In Chavez v. 24 Hour Fitness USA, Inc. (2015), Stacey Chavez was injured when the back panel of a “FreeMotion” cable crossover machine (“cross trainer”) struck her in the head. She subsequently filed suit. The machine was still in service despite a missing bracket and missing magnetic strips that were to secure the back panel.

24 Hour Fitness claimed it was not liable because she had signed a waiver of liability – a complete defense against negligence claims.

A Look at California Law on Negligence and Liability Waivers

By Doyice Cotten

In R.H. v. Los Gatos Union School District (2014 U.S. Dist. LEXIS 47035), a high school wrestler was injured when he wrestled a larger opponent in a match. There were many claims including mismatching and negligence. Prior to wrestling, the father of R.H. signed a liability waiver. Here we will only look at the waiver defense of the defendants.

When R.H. joined the wrestling team, his father signed the required “After School Sports Emergency/Health Insurance form”

Parental Waiver Ambiguity Caused by Failure to Specify that Both Parent’s and Minor’s Rights Are Waived

By Doyice Cotten

In a 2013 California case (Vahedy v. Remigio), a 16 year-old camper was injured while being transported by a camp volunteer back to the Jews for Jesus headquarters for the final night of the camp. Cecilia Vahedy’s father had signed a “Medical Authorization and Liaibilty Release.” There were a number of issues in the case, but the one addressed in this post regards the possible ambiguity created when the waiver fails to clearly specify that the parent is waiving both the parent’s and the minor participant’s right to sue.