By Doyice Cotten
In 2018, two-year-old girl lost her little toe while sliding down a sliding board into a splash pad at Buzzards Bay Park in Bourne, MA. At the time she went down the slide, there was a vertical crack about a foot long in the slide. The toe caught in the crack and was sliced off. [A splash pad is a recreation area, often in a public park, for water play that has little or no standing water.]
The girl,
By Doyice Cotten
Marie Hanrahan-Fox, after patronizing the shooting range operated by Defendant Top Gun Shooting Sports, alleged that she suffered irreversible hearing loss due to the inadequate hearing protection provided her by Top Gun. She claimed that Top Gun was negligent; in addition, her husband made a claim for loss of consortium. They also made a products liability claim against Pyramex Safety Products, LLC, which was not before this court.
Top Gun moved for Summary Judgment based on the waiver signed by the plaintiff.
By Doyice Cotten
This post examines another important issue in the Witkowski v. Niagara Jet Boat Adventures, LLC, 2020 case – Gross Negligence or Ordinary Negligence.
In the jet boat case, the Witkowski’s took a jet boat ride and Sarah Witkowski suffered injury. The reader is referred back to last week’s post for the facts of the case.
The final issue addressed in the case was the allegation that Niagara Jet was grossly negligent.
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.
By Doyice Cotten
Sport, recreation, and fitness businesses regularly depend upon liability waivers for protection from liability for injuries resulting from the negligence of the business. What is still astounding is the quality of some of the waivers relied upon by some businesses. Some small businesses have investments of hundreds of thousands of dollars; other businesses’ investments are in the millions. In spite of this, some are relying upon what seems to be a 25 cent waiver.
In New Pelican Charters,LLC v.
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,
By Doyice Cotten
Robert Wagner, a Life Time Fitness client, suffered injury when he stepped onto a treadmill that was already in motion. No detail was given as to how the club was negligent (Wagner v. LTF Club Operations Company, Inc. (2019). Since Wagner failed to designate specific facts showing that there was a genuine issue for trial, there was no evidence that a reasonable jury could return a verdict for the nonmoving party. Consequently,
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.
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.
By Doyice Cotten
The primary purpose of a liability waiver is to protect the entity from liability for injuries resulting from the negligence of the entity and its employees. A secondary function of the waiver is to help provide protection from liability for injuries resulting from the inherent risks of the activity. Technically, the provider is not usually liable for injuries associated with the inherent risks – provided the injured party was familiar with those inherent risks. The listing of inherent risks in the waiver can provide evidence that the participant was aware of the inherent risks;