Tag Archives: inherent risk

Should the Specific Risks of the Activity Be Listed in the Waiver?

By Doyice Cotten

 A 2018 New Mexico rappelling case (Dominguez v. United States, 2018) illustrates clearly why it is important that waivers warn the signing client of the risks faced in the activity.

Sarah Dominguez, a civilian, participated in a team-building activity at the Para-Rescue Academy at Kirkland Air Force Base. She informed the person in charge that she had never rappelled; she said later that she had been informed there would be no climbing involved in the activity. 

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.

Make Certain your Waiver Protects You against Your own Negligence!

By Doyice Cotten

Roseann Jablanofsky died in an accident while taking a motorcycle safety training program. She wanted to be able to accompany her husband on motorcycle rides.

Prior to the course, she signed a waiver of liability; the course included classroom instruction and riding practice in a parking lot. In addition, the class was shown a video that warned of the risks associated with operating a motorcycle, and all participants were verbally warned.

At one point during the riding class,

Risk Signage that Gets Your Attention!

By Doyice Cotten

Sport, fitness and recreation professionals know all about risk … and most know at least a little about risk management. And, certainly, we all are familiar with warning signs. Some are good, some are not effective, and some are such that they are not even noticed.

“Why bother with warning signs? Any fool can see a trampoline is dangerous!” you might say. Well, sport, fitness, and recreation providers are faced with possible liability for injuries created by two types of risk: 1) inherent risks of the activity and 2) risks created by the negligence of the provider.

Waivers OK in Montana – New Statute

By Doyice Cotten

For years there have been three states that prohibit the enforcement of pre-injury liability waivers: Louisiana, Montana, and Virginia. Now there are only two as the Montana Legislature has passed HB0204. Granted, there are a few more states in which courts are rather reluctant to enforce waivers.

Some of the reasoning behind the statute included getting maximal participation and availability of sports and recreational activities for residents and visitors; the fundamental right of people to decide on activities and contracts;

Redacted Waivers in New York Help Protect

By Doyice Cotten

New York’s highest court has stated that disclaimers or releases of liability are looked upon with disfavor; however, absent conflict with statute or public policy, courts will enforce such contracts (Gross v. Sweet, 1979).  Factors used in determining enforcement include: 1) intent of the parties, 2) clearness and comprehensibility of the language, 3) parties’ awareness of the agreement, and 4) the frequency with which the releases appear in the type of transaction under consideration.

Duty and Liability

by Charles R. Gregg

Readers will find that this to be an informative legal liability article. “Reb” Gregg is one of the nation’s top adventure law attorneys. This article originally appeared on Reb’s website.

Q. How do I run a good program without being sued?                                                                             

A. You can’t. People can and may sue you, with or without justification. And even the best program can make mistakes which might provoke the lawsuit.

Assumption of Risk – Waivers – Indemnification: What Do They Do?

This Table is excerpted from the 7th edition of Waivers & Releases of Liability by Doyice and Mary Cotten.

Have you ever wondered “What is the difference between assumption of risk and a waiver?” What about “‘What exactly is the function of a waiver?” or “What does indemnification language do?” Well, this table will explain the differences in the three concepts and will help you to see why a good “waiver” really should include all three.