Tag Archives: gross negligence

Established Protecol 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,

Do Texas Courts Enforce Waivers for Gross Negligence?

By Doyice Cotten

Last week’s post, Court in Texas Trampoline Park Case Enforces Waiver for Gross Negligence, involved an occasion when a Texas Appellate court did enforce a waiver for gross negligence. But, when one looks at previous court rulings, it becomes clear that there are two schools of thought on the matter of whether waivers can protect against liability for gross negligence.

Some Texas courts feel that gross negligence is not a separate cause of action from that of negligence.

Court in Texas Trampoline Park Case Enforces Waiver for Gross Negligence

By Doyice Cotten

Graciela Quiroz and her sixteen-year-old son went to Jumpstreet for trampolining. Before jumping, she signed a pre-injury waiver of liability “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” After signing the waiver, Graciela attempted to do a flip and injured her neck; this resulted in paralysis from the waist down. She sued Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and for mental anguish;

Niagara Jet Boat Patron Challenges Waiver on Negligence, Violation of a Safety Statute, Breaching a Condition of a Contract, and Gross Negligence

By Doyice Cotten

Scott and Sarah Witkowski and their son rode a Niagara Jet Adventures(referred to as Niagara) jet boat after having signed a waiver of liability. The boat hit a large wave throwing Scott and the son into Sarah causing injury.  The Witkowskis sued Niagara alleging negligence and gross negligence. They also alleged negligence per se claiming Niagara violated a safety statute (This was not properly pled and was dismissed.)

The Waiver

Pertinent parts of the waiver read:

“In consideration of participating in whitewater,