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Are You at Fault? Waivers Are The Best Protection for Fitness Centers
Five Facts about Waivers & Releases That Everyone in Recreation, Sport, and Fitness Should Know
By: Dr. Doyice J. Cotten and Mary B. Cotten |
Properly worded waivers for fitness centers and personal trainers can be the difference between going out of business due to an incident, or being held harmless.
The fact that a waiver was written by an attorney is not a guarantee of its effectiveness, as evidenced by the fact that about half the waivers that fail were written by attorneys.
Very precise language is required on a state by state basis.
Most recreation, sport, and fitness
professionals are aware of the potential for lawsuits and legal liability - and rightly so. The expense of a lawsuit can have a devastating effect upon your business - even if you win the lawsuit. The purpose of this article is to help you be more knowledgeable about waivers (and releases) as a protection against liability.
Fact Number One: Waiver Law Varies from State to State
One cannot accurately make the generalization that "Waivers will protect one from liability" or the generalization that "Waivers will not protect one from liability." Waiver law is state law and varies depending upon the state where your business is located. But waivers can protect service providers from liability, under certain circumstances, in at least 46 of the 50 states.
 States in which waivers are not enforced are Montana, Louisiana, and Virginia. There have been no recreation, sport, or fitness related waiver cases in Rhode Island, so it is impossible to predict whether the courts in that state will enforce waivers. Additionally, courts in some states enforce waivers in certain situations. For instance, New York courts will not enforce waivers used by places of amusement or recreation when the owner receives a fee or other compensation for the use of the facilities. In Hawaii, recreational activity waivers do not protect service providers against liability for injury resulting from negligence.
The function of a waiver is to protect against liability for injuries resulting from the ordinary negligence of the provider or its employees.
Fact Number Two: Waivers Do Work!
In most states waivers do provide liability protection for service providers. Contrast the results of the following cases:
A New York health club client paid a membership fee that included three sessions with a personal trainer. The trainer placed the client on a treadmill, set the machine at 3.5 miles per hour for 20 minutes, gave no instruction regarding the treadmill, and left the client unattended.
The client soon tired, was thrown from the treadmill, suffered injury, and filed suit. The club claimed the client assumed the risk of the activity and asked for summary judgment in its favor, but it was shown that the client was a sedentary novice who was unfamiliar with health club activities and equipment.
In the absence of a waiver, the court ruled for the client and sent the case to trial to determine if the club was negligent. (Corrigan v. Musclemakers, Inc., 1999 N.Y. App. Div. LEXIS 1954)
In a California case, a health club client was injured when an arm curl exercise machine fell on her. The club had removed the bolts (recommended by the manufacturer) attaching the machine to the floor. It was alleged that the machine was sitting on a bar and was unbalanced when it fell on the client.
The client said she was not touching the machine at the time. The court ruled for the club stating that the claim of the client was barred by the waiver provision included in the membership agreement. (Homer v. Bally Total Fitness Corporation, 2001 Cal. App. LEXIS 2849).
Here we have two similar cases. Each club was probably negligent. The first did not use a waiver whereas the second, Bally Total Fitness, did. The first was probably liable while the second was protected from liability by the waiver.
Fact Number Three: Waivers Protect Against Liability for Negligent Acts
Many professionals erroneously think that a waiver will protect them from liability for injuries that result from accidents in which they were not at fault, but will not protect if the club or professional was negligent. This is not true. The function of a waiver is to protect against liability for injuries resulting from the ordinary negligence of the provider or its employees.
Fact Number Four: Waivers Have Limitations!
While waivers are enforceable in 46 states, they are not without limits. The following are a few of the more significant limitations of waivers.
Extreme Forms Of Negligence
Waivers generally do not protect against liability for gross negligence, reckless conduct, willful or wanton acts, or intentional acts that cause injury. Courts in a few states enforce waivers referring to gross negligence or reckless conduct.
Well-Written
Courts are consistent in saying that waivers must clearly express the intent of the parties. In other words, they must be well written. States vary as to the requirements for writing an enforceable waiver. Some are very strict regarding the exculpatory language and others are relatively lenient.
Waivers Signed By Minors Or Parents Of Minors
 A waiver signed only by a minor is not enforceable. For this reason, providers generally require that a parent sign the waiver. The general rule has been that a parent does not have the authority to sign away the minor's right to sue. In recent years, however, courts in 8 states have enforced waivers signed by parents and court rulings in at least 6 more states indicate that courts in those states may enforce such waivers.
Waiver Should Be Conspicuous And Adequate Time Should Be Allowed To Read
When waivers are hidden deep within a document (such as a membership agreement), the provider risks having the waiver disallowed if the signer can show that he or she was unaware of the waiver. Be certain the reader is notified that the agreement contains waiver language and has an opportunity to read the document.
Fact Number Five: You Should Learn All You Can About Liability and Waivers
Multi-million dollar liability judgments are awarded by the courts in recreation, sport, and fitness suits each year. It is crucial that you as a professional learn to protect yourself and your business from liability for negligence - whether you are an employee, an independent contractor, a club manager, or an owner. Surround yourself with resources ranging from an attorney in whom you have confidence, to risk management materials, to further education regarding liability (often found at fitness conferences), to trained and knowledgeable employees.
Learn as much as you can about waivers - and do not assume a waiver you see in an article or one that a friend is using will protect you. Find an attorney who has experience writing fitness, sport, or recreation related waivers. Most attorneys have had little or no experience in this area. The fact that a waiver was written by an attorney is not a guarantee of its effectiveness, as evidenced by the fact that about half the waivers that fail were written by attorneys.
You can utilize your attorney in one of two ways: 1) you can hire him to write a waiver designed specifically for your business, or 2) you can write a waiver yourself based upon what you can learn about waivers and then have your attorney read it and make certain it fulfills the court requirements of your state. The second would be the least expensive approach.
Where to Learn More About Waivers
In either case, it is important that you learn as much as you can about waivers. The most complete resource available regarding waivers and releases is Waivers & Releases of Liability (4th ed.) by the authors of this article, Doyice and Mary Cotten. Both you and your attorney can use the material in the book to devise an effective waiver. It is important that you should be certain that the waiver you ultimately use meets the standards suggested in the book.
Waivers & Releases of Liability contains 134 pages, gives the waiver law in each state, classifies each state as to the rigor required by the courts for waivers, includes waiver law regarding minor clients, has two chapters devoted to writing an effective waiver, and includes many illustrative waivers.
The book is available from the authors for $35 plus $3 shipping. Send a check to the authors at 403 Brannen Drive, Statesboro, GA 30458, or contact them by phone
Phone: (912) 764-4848
Email: djcotten@gmail.com
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