Tag Archives: gross negligence

Waiver Fails for Virgin Islands Excursion Company

Circumstances of the Case

While their cruise ship was at St. Thomas, Katherine and Jamie Leach, along with about 20 other passengers, went on a day excursion operated by defendant Cruise Ship Excursions (CSE) aboard a 53-foot catamaran sailing from St. Thomas to St. John and back.

While boarding, the captain informed the passengers of the schedule and location of the life preservers.  While the boat was departing, the crew passed around to passengers a clip board which contained a purported waiver and release.

Multiple negligent acts do not Equal Gross Negligence in the Pennsylvania Triathlon Case

By Doyice Cotten

We have written before about the distinction between ordinary negligence and gross negligence:

Ordinary negligence is the failure to use such care as a reasonably prudent and careful person would under similar circumstances. It is an unintentional act or failure to act that causes harm to another party.

Gross Negligence is an extreme form of negligence in which one fails to use the care that even a careless person would use.

Gross Negligence Law in Pennsylvania

By Doyice Cotten

 

The Pennsylvania Supreme Court (Tayer v. Camelback Ski Corporation, Inc., 2012) addressed the issue of the

enforceability of waivers when the act in question was recklessness; it ruled that there is a dominant public policy against enforcing waivers seeking to protect reckless behavior. Unfortunately, the court left unaddressed the issue of waivers when the action involved gross negligence.

It was not until 2019 when the question was answered.

Established Protocol for Administering Electronic Waiver Protects Fair When Participant is Killed

By Doyice Cotten

The 28th District, an agency in the State of California, organizes and operates the San Bernardino County Fair and owns and operates the event location. The fair’s attractions are owned and operated by independent vendors. The vendor in this case, FD Event, owned and operated the “Free Drop Experience.” It involved jumping off scaffolding 36 feet high onto a stuntman airbag. When constructing the scaffolding for the May, 2015, fair the platform at the top was eliminated because it seemed to add too much stress to the tower.

The Difference Between Ordinary Negligence and Gross Negligence

By Doyice Cotten

Most sport, recreation, and fitness professionals have an idea (though they are often incorrect) of what constitutes ordinary negligence. Many understand that

ordinary negligence is the failure to exercise the level of care that someone of ordinary prudence would have exercised under the same circumstances. Many understand that negligence is indicated by  inattention, irresponsibility, and actions that are careless.  

A California federal court (Kabogoza v. Blue Water Boating,

Lawsuit Illustrates a “How-to” Guide for Personal Trainers

By Doyice Cotten

Personal trainers should recognize the potential for injury in their profession and strive to serve their clients safely and effectively. Gregory Pedersen, the personal trainer in Berisaj v. LTF Club Operations Company, Inc. (2019), was faced with a lawsuit by a client of 17 fitness sessions; the lawsuit alleged 1) negligence, 2) gross negligence, and 3) willful and wanton misconduct.

Plaintiff Victor Berisaj, who had been a client of LTF since 2007,

California: When a Provider Increases the Inherent Risks of the Activity

By Doyice Cotten

Jim McNeil was a professional motocross rider and jumper; he was killed in an incident in which he was attempting to make a 75 foot jump over a motorhome (McNeil v. Freestylemx.com, 2016). His motorcycle had a loss of power and his flight fell short of the landing ramp. He had performed similar jumps in about 250 shows. In an earlier litigation, this court declined to grant the defendant’s bid for summary judgment because there was an issue of fact as to whether McNeil had actually signed the waiver.

Risk Management Procedures Help Save Utah Snowmobile Operator from Liability

By Doyice Cotten

Matthew Rose rented a 2014 Polaris snowmobile from Summit Lodge. While approaching an opening in a wooden fence on the snowmobile, the throttle stuck on full-throttle and resulted in an injury to Rose.

The snowmobile has a thumb-operated throttle lever for acceleration; release of the lever is supposed to return the machine to idle. Normally, the machine has two methods of manual shut-off: a kill switch or by turning the key to off.

Yikes!! An Injury — Am I Liable?

By Doyice Cotten 

Sport and recreation managers are often confused about their liability in the event of an injury. This is understandable because the law is far from simple. The intent of this post and the included table is to reduce at least some of the confusion.

First, injuries result from one of three causes. The cause of injury may be a simple accident or an “inherent risk” of the activity. In this case the provider usually has no liability providing the injured party was aware of the inherent risks of the activity.

Summary Judgment Rulings in Recent New Jersey Waiver Cases when Gross Negligence is Alleged

By Doyice Cotten

Plaintiffs often allege both negligence and gross negligence when injured and seeking redress. New Jersey law generally holds that “contracting parties are afforded the liberty to bind themselves as they see fit.” Waivers of provider negligence, however, are disfavored in law and must be subjected to close judicial scrutiny. Such waivers must reflect the intent of the party giving up rights to do so voluntarily and with knowledge of the consequences. Further the signer of a contract,