Tag Archives: conspicuous

Problem with Waiver Contained Within Membership Agreement

By Doyice Cotten

In Hinkal v. Gavin Pardoe & Gold’s Gym (2015), Melinda Hinkal was injured while a client of a Pennsylvania health club. She had signed a membership agreement containing a waiver of liability. While working with a personal trainer, she suffered a back injury and filed a negligence claim.

The major issue in the case was whether the waiver language was sufficiently conspicuous to be enforceable.

The Agreement

The Gold’s Gym membership agreement is printed on a single,

Is Your Waiver Included within your Membership Agreement? This Case May Motivate you to Rethink Your Format 

By Doyice Cotten

We often post reminders that two good rules to follow are: 1) Use a stand alone document for your waiver. Do not include it in a membership contract and do not combine it with a registration form. 2) Always make the waiver obvious – particularly if you are not following rule one. Make the waiver stand out so there is no question that the signer saw it, understood it, and realized the significance of what he or she was signing.

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,

Factors Affecting Waiver Law in the State of Washington (Part 2)

By Doyice Cotten

This case examines Washington waiver law, specifically as it relates to health clubs and fitness centers. Most of the concepts, however, apply to all waivers in the state. Two issues were raised last week and three more are addressed next week.

Part II

A recent Washington waiver case (DeAsis v. Young Men’s Christian Association of Yakima, 2014 Wash. App. LEXIS 2201) clearly explains Washington law regarding the enforcement of waivers used by health clubs.

Factors Affecting Waiver Law in the State of Washington

By Doyice Cotten

This case examines Washington waiver law, specifically as it relates to health clubs and fitness centers. Most of the concepts, however, apply to all waivers in the state. Two issues raised will be addressed this week and three more will be addressed next week.

Part I

A recent Washington waiver case (DeAsis v. Young Men’s Christian Association of Yakima, 2014 Wash. App. LEXIS 2201) clearly explains Washington law regarding the enforcement of waivers used by health clubs.

California Town Dodges the “Fraud-Bullet” in Group Waiver Case

By Doyice Cotten

Ernest Jones sued the City of Ukiah alleging negligence after breaking his ankle while sliding into second base in a softball game. He claimed the city negligently supervised and maintained the fields causing an injury (Jones v. City of Ukiah, 2013 Cal. App. Unpub. LEXIS 5125).

Jones had signed a group waiver which, frankly, left much to be desired in its format. Some of the problems were:

  • Title:
    • “2008 FALL MEN’S SOFTBALL LEAGUE SOFTBALL ROSTER FORM ALL PLAYERS MUST SIGN BELOW BEFORE THEY CAN PLAY.”

How to Make Your Waiver “Conspicuous”

By Doyice Cotten

Courts in many states require that to be enforceable, the exculpatory language of the waiver must be conspicuous. In a recent Texas case (Charbonnet v. Shami, 2013), the court discussed Texas waiver law (which requires that a waiver must satisfy their express negligence doctrine and must be conspicuous), making a number of suggestions as to what makes the waiver conspicuous.

The Texas court stated that a waiver “is conspicuous when it draws the attention of a reasonable person looking at the face of the document such that the person ought to notice it.” The court went on to clarify its meaning:

1)      When determining if the waiver is conspicuous,

Release/Assumption of Risk Agreement Language Protects Mechanical Bull Provider from Liability for Inherent Risks

By Doyice Cotten

While in a bar after watching others, Revel Thom decided to ride a mechanical bull.(Thom v. Rebel’s Honkey Tonk, 2012 Tex. App. LEXIS 7555) Before riding the bull, he completed and signed a document entitled PARTICIPANT AGREEMENT, RELEASE, AND ASSUMPTION OF RISK. When he was thrown from the bull, he fractured two vertebrae in his back.

He then sued appellees for his injuries. The trial court awarded summary judgment to Rebel’s Honky Tonk.

How to Make your Waiver More Conspicuous!

By Doyice Cotten and Mary Cotten

To be effective and stand up in court, a waiver must be clear, explicit and comprehensible. It must be easily readable and placed in such a way to compel notice. A waiver of liability may not be enforced if it is unlikely to be noticed and understood by the signer.

The important exculpatory language should be placed in a prominent position and must be distinguished from other sections of the document.