Tag Archives: inherent risks

Utilize the “Negligence of the Provider” — But Address Negligence Risks and Inherent Risks Separately

By Doyice Cotten

On countless occasions, this author has stressed two points. First, is the value (or even necessity) of including specific reference to the “negligence of the provider” in the exculpatory language of a waiver. In many states, the term is mandated in order for a waiver to be enforced; in others, it is strongly recommended. Alternately, in some states, general language such as “any and all claims” is sufficient. In Florida, four of its Districts require the use of the term “negligence.” In its 5th District (the district hearing this case),

Waiver Terminology (Part II)

By Doyice Cotten

 This is Part II of this series. You will notice that while Part I consisted of seven terms that were closely related in that all were designed to protect against liability for ordinary negligence and that were for the most part synonymous, Part II consists of very different terms. I would recommend that you review Part I when you finish Part II.

Indemnity Agreement

An indemnity agreement is a contract signed prior to participation by which participant or another party agrees to reimburse the provider for any monetary loss,

Understanding Negligence and Liability: “Causes of Injury” (Part 3)

By Doyice Cotten

In Parts 1 and 2 of this series, we addressed the issue of negligence. This post presents explains that there are 3 causes of injury and the possible liability associated with each.

Injury and risk may be placed into three categories. These categories are 1) inherent risks, 2) risks arising from negligent behavior of the provider, and 3) risks arising from extreme or aggravated provider behavior that goes beyond ordinary negligence.

What Does Your Waiver Protect Against? Inherent Risks – Ordinary Negligence – Acts Greater than Ordinary Negligence

By Doyice Cotten

There are literally hundreds of waiver cases in which the waiver protected the provider from liability for ordinary negligence by the provider. In the Salinger case below, the waiver specifically stated that Grace Farms was released from liability for negligence (meaning ordinary negligence) and would have protected the provider from such liability. However, the plaintiff alleged “greater than ordinary negligence,” which in Minnesota meant willful and wanton conduct. In most states, waivers do not protect against gross negligence,

A Tale of 3 Waivers

By Doyice Cotten

On a recent trip to North Carolina, I picked up a copy of their waiver from three whitewater rafting companies – Nantahala Outdoor Center, Inc. (NOC), Carolina Outfitters, Inc., and Whitewater LTD Rafting. The waiver of each company is probably adequate to protect the company from liability for injuries resulting from negligence of the operator or from the inherent risks of the operator. Some important points from each waiver will be examined here.

First Things First when Writing a Waiver

By Doyice Cotten

Many people and businesses rely on waivers to protect against legal liability for injuries resulting from negligent acts by the business or its employees. Some of those relying think waivers will always protect; others, more realistically, realize that waivers can protect under some circumstances, but not under others. The waivers in the following three sport and recreation waiver cases failed to protect for, essentially, the same error. Look for the similarities and check your waiver for that mistake.