Tag Archives: skiing

Do Waivers Protect when the Injured Party has a Disability?

By Doyice Cotten

Sometimes activity providers are reluctant to offer activities to participants with disabilities because they fear possible injury and have doubt as to whether their liability waiver would be enforceable against a person with a disability. The following is a case that is more than 20 years old, but that accurately illustrates that there is no “special waiver law” for the disabled.

Franklin Potter, a skilled and experienced handicapped skier, was injured in the National Handicapped Downhill Championships race.

Court in New York Ski Case Rules that Parental Waivers Allowing Minors to Ski are Valid & Enforceable

By Doyice Cotten

Bryan DiFrancesco’s son was injured while on a ski lift with a ski instructor employed by the defendant Win-Sum Ski Corp [DBA Holiday Valley, Inc.]. The uncle of the boy had signed a waiver of liability and assumption of inherent risks so that the 5 year-old could ski. The boy fell from the lift and sustained severe injuries. The father subsequently filed a suit in federal court against the ski resort on behalf of the boy (DiFrancesco v.

Choice-of-Law Provision Fails: Waiver Falls under Vermont Law

By Doyice Cotten

Brian Kearney was seriously injured while competing in a USSA sanctioned amateur downhill ski race at Okemo Mountain Resort in Ludlow, Vermont, in February, 2015. USSA members were eligible to participate and membership required signing a liability waiver (Kearney v. Okemo Limited Liability Company, 2016).

The waiver contained the following exculpatory provision:

Member hereby unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS,

How Broad Should Your Waiver Be?

By Doyice Cotten

Can a waiver fail to protect the service provider because it is too broad in scope?  YES.  Can a waiver fail to protect the service provider because it is not broad enough in scope?  YES. Where does the provider or the waiver writer go from here? One might answer “Make it as broad as you can without making it too broad . . . but, be sure you cover everything.” That doesn’t help much, does it?

Unforced Errors: The Scope of the Waiver MUST be Clear!!!

Doyice J. Cotten

FACT: A well-written waiver willingly signed by an adult participant can protect the service provider from liability for the provider’s negligence in most states.

FACT: Many waivers fail because of what might be termed “unforced errors” on the part of the writer in making clear the scope of the waiver.

In this post, I am reporting several recent cases in which the waiver failed to protect the provider from negligence. The reader should be able to understand why the failure was preventable.

Importance of Clarity of Meaning in Colorado Waivers

By Doyice Cotten

A 2015 Colorado case at a ski resort illustrates the importance of clarity of intent or meaning in liability waivers (Schlumbrecht-Muniz v. Steamboat Ski and Resort Corporation, 2015 U.S. Dist LEXIS 125899). Colorado courts examine four factors in determining the validity of a waiver. They are:

• whether the service provided involves a duty to the public
• the nature of the service provided
• whether the agreement was fairly entered into
• whether the agreement is clear and unambiguous

In this case,

U.S. District Court Case Clouds Vermont Waiver Law

By Doyice Cotten

Over the past 20 years four Vermont Supreme Court rulings have made Vermont waiver law relatively clear. A recent U.S. District Court for the District of Vermont ruling (Littlejohn v. Timberquest Park at Magic, LLC, 2015) seems to have muddled the issue. It seems that occasionally federal courts get it wrong in predicting how a state supreme court would rule.

The Vermont Supreme Court (Dalury v.

For Protection under Assumption of Risk: Injured Party MUST Have Known the Risks!!!

By Doyice Cotten
One of the most commonly used defenses when someone is injured in a recreational activity is that the participant assumed the risks. While the law varies somewhat from state to state, it is generally an effective defense when the provider has not been negligent.

In a recent Pennsylvania case M.D. v. Ski Shawnee, Inc. (2015), a nine year old novice skier on an elementary school ski trip was injured when she collided with a snowmaking machine on the slope.

Sport Safety Statutes Can Affect the Effectiveness of Liability Waivers

By Doyice Cotten

Most states have enacted at least one of what are sometimes called sport safety acts or shared responsibility statutes (e.g., equine, ski, whitewater rafting) intended to define or limit the liability exposure of operators of selected activities.

Some of these statutes hold the operator to a duty of ordinary care. When they do, a waiver cannot protect the operator in the event of ordinary negligence. Other statutes prescribe a list of specific duties of the operator.

Waivers and Persons-with-Disabilities: Do the Same Rules Apply?

By Alexander “Sandie” Pendleton

 One positive development in the world of sports in the last two decades has been the substantial increase in opportunities available for persons with disabilities to engage in active recreational activities and competitions. But during that time there have been few cases addressing the enforceability of waiver-of-liability agreements, when activity or competition involved persons with disabilities. This has raised the question of whether in such cases courts will apply the same rules regarding waivers,