Tag Archives: Waivers

Liability Waivers 101 (2018 Update)

By Doyice Cotten

Where there are fitness, recreation, and sport activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in three ways.  First, the provider should institute a sound risk management program which includes an approach toward reducing the likelihood of injury as much as possible.  Secondly, they should purchase financial protection through liability insurance. Third, they should use an agreement by which the client agrees to relieve the provider of liability for participant injury – the document should include an assumption of risk (for inherent risks),

Some Important State Waiver Statutes

By Doyice Cotten

Most state waiver law comes from court rulings but many state legislatures have passed statutes regarding liability waivers. Some statutes have a strong impact upon waivers in the state; others are less important, often affecting waivers for only one sport. A few of each are listed below:

High Impact Statutes

La Civ Code Ann art 2004 states:

Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Liability Waivers are Prohibited in Louisiana! But Should Providers Continue to Use Them?

By Doyice Cotten
Brenda Fecke, a senior at LSU, fell while bouldering at the LSU Recreation Center indoor rock climbing wall facility. The fall resulted in an ankle injury; this was followed by a lawsuit alleging negligence on the part of LSU (Fecke v. The Board of Supervisors of Louisiana State University, 2015 La. App. LEXIS 1357). Among the many allegations was that the university gave minimal instructions and failed to determine her skill level prior to allowing participation.

Interpreting a Waiver: Can you do it?

By Doyice Cotten

The Waiver

“I understand that there are inherent and other risks involved in the sport for which this equipment is to be used and that injuries are a common and ordinary occurrence of the sport, and I freely assume those risks.” The release also states that the signer “hereby release[s] the Inn and its owners, agents and employees from any and all liability for damage to [the signer] . . . resulting from negligence: installation,

Go-Kart Waiver Fails Because it Failed to Specify the Duration of the Waiver

By Doyice Cotten

Nicholas Weinrich was injured in a go-kart race when he collided with a protruding section of the guardrail. Weinrich was not required to sign a pre-race waiver because he had signed one at a race six months earlier (Weinrich v. Lehigh Valley Grand Prix Inc., 2015). A primary issue in the case was whether the previous waiver was still in force – in other words, “What was the duration of the waiver?”

Waivers NOT Containing the Word “Negligence” Fail in 3 Recent New York State Cases

By Doyice Cotten

Some waivers protect; others fail to protect. There are many reasons waivers fall short of providing the protection intended by the provider.  Some reasons include gross negligence involved, violation of statutory duty, unequal bargaining power, unconscionable contract, no opportunity to bargain, employer/employee relationships and many more. Most common, however, is that the language used in the waiver was ambiguous.  Courts in most states specify that to be enforced, the waivers must clearly and unambiguously describe the intent of the two parties.

Bike Shop Risk Management Concerns -Part 6

Part 6 of a 6 Part Series

This series is specifically aimed at the needs of Bike Shops, however much of it holds true for many other sport-related businesses. The first five articles are written by Scott Chapin who has 15 years of experience in insurance and specializes in insurance for Bike Shops.  He is with RJF,
a Marsh & McLennan Agency LLC company located in Minneapolis. This final article is written by Alexander Pendleton,

Good Waivers Fail; Bad Waivers Protect — SOMETIMES

By Doyice Cotten

In Waivers & Releases of Liability (7th ed.), this author devotes two entire chapters (More than 50 pages) to how to write an effective waiver. One can construct a great waiver by following the guidelines presented. However, waivers don’t always work as expected. In case law we find that some very poor waivers successfully protect the provider, and we find that on occasion, very good waivers fail to protect for one reason or another. In this article,

Failing Waiver Language: Too Broad and Too Narrow

By Doyice Cotten

Waivers may fail for a number of reasons. Over the last several years it seems that there is a rash of failures because the waiver was 1) too narrowly constructed, 2), overly broad or 3) did not specifically name a party seeking protection. Seldom, however, does a waiver fail for all 3 deficiencies – as is the case in this instance.

In Fisher v. Stevens (2003 S.C. App. LEXIS 109), Stevens (the wrecker driver) was responding to an accident on the race track.