By Doyice Cotten
Some waivers protect; others fail to protect. There are many reasons waivers fall short of providing the protection intended by the provider. Some reasons include gross negligence involved, violation of statutory duty, unequal bargaining power, unconscionable contract, no opportunity to bargain, employer/employee relationships and many more. Most common, however, is that the language used in the waiver was ambiguous. Courts in most states specify that to be enforced, the waivers must clearly and unambiguously describe the intent of the two parties.
By Doyice Cotten
This is Part III of this series on waiver terminology. This part is intended to impress upon the sport and recreation professional the value of waivers of liability.
Why all the fuss about waivers of liability? The following California case (Padilla v. The Sports Club Company, 2008 Cal. App. Unpub. LEXIS 8150) illustrates very clearly why recreation and sports entities should use waivers.
Belinda Padilla was a member of The Sports Club Company,
By Doyice Cotten
In a recent case (Geczi v. Lifetime Fitness, 2012 Ohio App. LEXIS 2580), Jodi Geczi was injured when her treadmill began jerking violently. The case revealed some serious risk management deficiencies that can be easily avoided by health club management.
First, an employee told her he had known the treadmill was broken.
Second, a club manager told her that he had known the treadmill was malfunctioning the night before.
By Doyice Cotten and Mary Cotten
In Waivers & Releases of Liability 7th ed. (Cotten, D. and Cotten, M, 2010), Arkansas was classified as a Strict state when it comes to enforcing waivers. A recent U.S. District Court ruling upholding the waiver in Kotcherquina v. Fitness Premier Management (2012) has caused a change in the Arkansas Strict classification. In the book, the Arkansas law is summed up by the following:
The Supreme Court stated that waivers are not invalid per se,
By Doyice Cotten
Lewis Operating Corporation and Homecoming II operate a residential property which offers a health club or exercise facility as an “amenity” for residents. John Costahaude, a resident, was using a treadmill when an employee or agent of the ownership group rolled a ball into, or under, the treadmill, causing the treadmill to flip upward and throw Costahaude off the machine. (Lewis Operating Corporation v. The Superior Court of Riverside County, 2011 Cal.
A patron’s fall off a stationary bike meets a court’s support of waiver protection for clubs.
By John T. Wolohan
This January, 2010, article written by John Wolohan illustrates the value of an effective waiver when an injury occurs.
Why do courts in some jurisdictions fail to uphold waivers, while other courts will accept them in most cases? Often, the reason is a belief that waivers encourage a lack of care. As a result, a court will closely scrutinize and invalidate a waiver if it is found to violate public policy or is overly broad,
Alexander “Sandie” Pendleton
Sports, Fitness & Recreational Team Leader
Kohner, Mann & Kailas, S.C.
Christopher McDougall’s bestselling book Born to Run, and the extensive discussion therein regarding the reported benefits of barefoot running, have helped to ignite a new exercise trend (craze?). Fitness center owners are being asked if members can exercise barefoot, or are just seeing members working out barefoot in areas of the facility where, until recently, no one wanted to do so.
This article by Doyice Cotten originally appeared in Fitness Management, but is as timely today as ever. Health, fitness, and recreation providers should have a plan in place for dealing with heart attacks and other serious incidents. Failure to do so can leave the provider liable.
Jerry Atcovitz suffered a heart attack while playing tennis at Gulph Mills Tennis Club in Pennsylvania. He later filed suit against the club claiming that damage to his heart could have been mitigated if the club had utilized an automated external defibrillator (AED).
Doyice Cotten summarizes four recent cases involving health clubs. The first three are appellate cases from Minnesota and the fourth is a New Jersey Supreme Court case. These cases re-emphasize the importance of unambiguous waivers. One might say that two of the three Minnesota cases involve gross negligence or willful and wanton actions, but the court did not agree. Actions resulting in injury are not often deemed grossly negligent, reckless, or willful and wanton by the courts. This high threshold further increases the value of well-written liability waivers.
A fitness center injury lawsuit illustrates the importance of a proper risk management plan.
Attorney John Wolohan ([email protected]) reports on a fitness center injury lawsuit that illustrates the importance of a proper risk management plan. John is a professor of sports law and chair of the Sport Management & Media department at Ithaca College. This article was published in Athletic Business in May, 2010.
As any administrator or employee involved in the sports and recreation industry will acknowledge,