Liability waivers are important for clubs with fitness facilities because, if well written, they can help protect the club from liability for injuries resulting from negligence in most jurisdictions. Being prepared can help the club avoid potential liability and run a safe and successful facility.
Liability waivers are considered a legal contract. In a waiver, one party relinquishes certain rights or privileges. In a fitness facility the waiver is typically used to preclude participants from suing the club for any future injuries due to the club’s negligence. In return, the participant then has the right to use the facility and engage in certain fitness activities.
A liability waiver does not protect the club from claims of gross negligence or wanton conduct. Such conduct demonstrates an utter disregard for the safety or health of participants and goes beyond the standard of carelessness found in negligence.
Liability waivers should always be carefully worded, disclose the risks involved, and explain any safety measures that must be taken by users.
Clubs should remember that state laws vary concerning liability waivers. The effectiveness of a waiver in court depends on its wording and scope. It is also helpful that the waiver be a standalone document and not incorporated within the context of another agreement.
The issues involving the enforceability of waivers can be complicated. As a result, club counsel should be consulted whenever liability waivers are used. Outlined below are some of the criteria courts have considered when enforcing liability waivers.
- Language is clear, explicit and unequivocal in waiving the club’s liability for negligence. Ensure that the term “negligence” is specifically used.
- The parties that will be protected by the waiver are specifically listed as well as all parties other than the signer who are relinquishing the right to sue for negligence.
- The participant has been put on notice concerning the range of dangers assumed by the user, the types of activities or circumstances covered, or the situations whereby the club may be relieved of its duty of reasonable care.
- At the time the waiver is signed, there is no vast difference in the bargaining power of the two parties involved.
- The enforcement of the exculpatory clauses would not be injurious to the public health, public morals or administration of the law.
- The ability to sue for gross negligence, wanton and willful conduct or fraudulent acts cannot be waived.
Special Issues Involving Minors
In most states, a minor cannot be legally bound by a contract they alone have signed. In addition, a minor cannot be bound by a contract signed on their behalf by either a parent or a legal guardian. The purpose of this prohibition is to protect minors from contractual obligations that they may not fully understand because of their age.
However, there have been a handful of state courts including Arizona, California, Florida, Mississippi and Ohio, which in recent years have upheld liability waivers signed by parents of legal guardians on behalf of minor children. Courts in these jurisdictions have typically weighed whether there was an overriding public interest that would make the waiver enforceable. Most jurisdictions today continue however to hold liability waivers for minors unenforceable.
As an alternative to waivers for minors, some fitness facilities have begun to use an “agreement to participate.” Although not considered a legally binding contract, an agreement to participate informs the user of the nature of the fitness activity that they are about to engage in as well as outlines the inherent risks that may be encountered. These types of agreements may help to strengthen the assumption of risk defense if an injury occurs. An agreement to participate should be signed by both the minor and his/her parents or legal guardian. As with any document that may protect the club from potential liability, it should be reviewed by club counsel.
Excerpted from the Club Director Reference Series monograph, “Fitness Facility Management and Liability.”