April 19, 2019

Archives for October 14, 2013

Colorado Court of Appeals: Printout of Liability Waiver Not Necessary Where Waiver Prerequisite to Playing in League

The Colorado Court of Appeals issued its opinion in Berenson v. USA Hockey on Thursday, October 10, 2013.

Summary Judgment—Best Evidence Rule—Exculpatory Agreement in Online Registration Process.

Annette Berenson appealed the summary judgment in favor of USA Hockey, Inc. and the Colorado Ice Hockey Referees Association (collectively, USA Hockey). The judgment was affirmed.

Berenson played in an amateur hockey league that required participants to register annually through the USA Hockey website. Players were required to signify agreement to the league’s terms by inserting their initials on a Web page with a liability waiver and release. Berenson was injured during a game and sued, seeking to hold USA Hockey liable for her injuries.

USA Hockey filed a motion for summary judgment based on the liability waiver and release Berenson had executed. Berenson testified that she could not remember whether she had agreed to the terms. USA Hockey submitted an affidavit from an employee stating that the online registration process could not be completed without executing the page with the waiver and release and confirming that Berenson had registered the year she was injured. The district court granted USA Hockey’s motion for summary judgment.

On appeal, Berenson argued that the facts stated in the employee’s affidavit were inadmissible as a matter of law and should not have been considered by the court. She contended that under the best evidence rule (codified in CRE 1002), the only admissible evidence showing she had executed the waiver and release would have been a printout of it, which was never produced. The Court of Appeals disagreed.

The Court noted that the primary purpose of the rule is “to prevent error and to guard against fraud in the ascertainment of content.” [See 5 Mueller and Kirkpatrick, Federal Evidence§ 10:17 (3d ed., 2007).] Based on the employee’s affidavit as to how the online registration process worked, there could be no issue of material fact as to whether Berenson had executed an exculpatory agreement with USA Hockey; she had to execute the liability waiver and release to complete the registration process and play in the league.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 10/11/13

On Friday, October 11, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Edmond

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 10/10/13

On Thursday, October 10, 2013, the Tenth Circuit Court of Appeals issued no published opinions and eight unpublished opinions.

Kramer v. Vigil

Fawley v. GEO Group

United States v. Green

Adams v. EMC Mortgage Corporation

Inuwa v. Jones

Anderson v. Private Capital Group

Barrera v. Kroskey

Sensabaugh v. Hickenlooper

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.n