Tag Archives: New Jersey

What if the Client does not Read English?

By Mary Cotten

The question of the effectiveness of a waiver signed by a non-reader or a non-English reader is a concern for sport, recreation, and fitness providers.  Courts generally hold that a person who signs a contract is bound by it whether they read it or not.

This was one of the issues before the U. S. District Court in a 2016 New Jersey case, Kang v. LA Fitness.  Kang, who could not read or understand English,

Enforcement of Health Club Waivers of Liability Challenged by New Jersey Supreme Court Judge

By Doyice Cotten

Courts in most states will enforce well-written liability waivers signed willingly by adults. Nevertheless, many people argue strongly against this protection for service providers. This post presents good arguments by one judge opposed to health club immunity from liability granted by such waivers.

Current New Jersey case law supports the enforcement of health club liability waivers. In fact, the Supreme Court of New Jersey recently determined to accept a stipulation for dismissal following a settlement of the matter by the parties.

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,

NJ Federal Court Addresses Several Waiver Issues:

By Doyice Cotten

In a recent New Jersey case (Kang v. LA Fitness of South Plainfield, 2016), the court addressed several issues relating to waivers. Among them was 1) non-reader or speaker of English, 2) font size, 3) national association standards, 4) failure to read the waiver, 5) failure to explain the waiver, 6) failure to initial a provision of the waiver, and 7) contract of adhesion.

Ms Kang was injured while working out on the chin/dip assist pull-up machine.

Admiralty Law Supports Liability Waiver in New Jersey Parasail Case

By Doyice Cotten

The Olmos and their two sons signed up for a parasailing trip. While on the boat traveling out of the inlet, Dina Olmo shifted her sitting position just as the boat hit a wave, lifting her into the air. When she landed she felt “a stabbing pain at the bottom of [her] back.”The boat immediately returned to the dock and she was taken to the hospital. The two sons remained to continue with their parasailing trip.

“Negligence or Otherwise” Language Questioned in New Jersey Health Club Case

By Doyice Cotten

Jenna Sauro, a New Jersey resident, filed a class action lawsuit against L.A. Fitness International, LLC. (Sauro v. L.A. Fitness International, Inc., 2013 U.S. Dist. LEXIS 58144). She made many allegations including that the contract violated three New Jersey statutes. One of the claims made by the plaintiff included the allegation that the waiver attempted to waive liability for intentional conduct, recklessness, and gross negligence.

This claim arose from language in the waiver:

 Member hereby releases and holds L.A.

Waivers & Non-Readers: Another Factor to Think About!

By Doyice Cotten

The author has written about some of the problems with having non-readers sign a waiver.  There can be problems whether the person is simply illiterate or does not speak and read English. Some courts have ruled that one is responsible for what one signs and have enforced waivers signed by non readers.

For instance, an Iowa court (Adams v. Frieden, Inc., 2002) ruled against a legally blind woman who had sued challenging a waiver protecting against liability for injuries incurred in the pit area of an auto racetrack The court stated that the state supreme court had not carved out a disability exception to the rule that people are bound by documents they sign even if they have not read them.

Ph.D. Fails to Read Waiver for FlowRider . . . Risk Management Signage and Waiver Protect

By Doyice Cotten

In a recent case (Steinberg v. Sahara Sam’s Oasis, LLC, 2014), the plaintiff was injured when he attempted the FlowRider. He sued alleging negligence and gross negligence on the part of the provider.

One of the issues was that the provider did not meet 2008 standards, but that was not necessary since the company was given a three year certification to operate the ride prior to the issuance of 2008 standards.

New Jersey Raceway Learns that Good Samaritan Statutes have Limitations!

By Doyice Cotten

Every state has some form of Good Samaritan statute which is intended to provide immunity from liability for certain parties who voluntarily and gratuitously come to the aid of injured persons. Good Samaritan laws were developed to encourage both physicians and laymen to help others in emergency situations. These statutes, however, are not without limitation as Atco Raceway, Inc. found out in a New Jersey case (Cruz v. Atco Raceway, Inc.,

Even Broadly Worded Waivers Are not Without Limitations

By Doyice Cotten

Many, or even most, waivers are written in such a manner as to include seemingly all mishaps that can occur to the client. There are many cases illustrating that the power of a liability waiver is not unlimited.

In a 2015 Illinois case (Hawkins v. Capital Fitness, Inc.), Hawkins signed the following waiver:

 

“MEMBER ACKNOWLEDGES THAT EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES OF THE COMPANY OR OF THEIR AFFILIATES NATURALLY INVOLVES THE RISK OF INJURY AND MEDICAL DISORDERS,