By Doyice Cotten
In the last post (You Be the Judge – Test your Liability Knowledge), a suit resulted from an injury when a woman slipped and fell on the icy sidewalk outside a health club. This post involves an injury caused by a fall on an uneven or cracked sidewalk about twenty feet from the entrance to a YMCA (Gibson v. Young Men’s Christian Association of Middle Tennessee, 2016).
The client had signed a waiver when she joined the YMCA. The pertinent part of the waiver read:
In consideration of gaining membership and/or being allowed to participate in the activities and programs of the YMCA of Middle Tennessee (“YMCA”) and to use its facilities (whether owned or leased), equipment and machinery, I do hereby waive, release and forever discharge the YMCA and its officers, agents, employees, volunteers, representatives, directors and all others from any and all responsibility or liability for injuries or damages resulting from participation in such activities or programs or my use of such facilities, equipment or machinery, even if such damage or injury results from a negligent act or omission.[Bold added.]
Gibson filed suit alleging negligence; she argued that the waiver applied only to activities within the facility and the use of the equipment and the facility. The YMCA claimed protection based on the waiver. The trial court, after hearing the arguments, held that “in entering the facilities was in fact using the facilities” and was contemplated by the parties in signing the waiver.
The appellate court stated that “Exculpatory agreements, such as the one signed by Appellee, have long been enforceable in Tennessee.” It said that court are to look to the plain meaning of the words in the document to determine the intent of the parties. It pointed out that the trial court did not find the waiver to be ambiguous. It went on to say that the agreement signed by Gibson released YMCA from liability for any and all injuries resulting from her participation in YMCA activities or programs or her “use of [YMCA] facilities, equipment or machinery, even if such damage or injury results from a negligent act or omission.”
It explained that it is immaterial whether Gibson contemplated tripping and falling on a sidewalk in front of the YMCA when she signed the waiver because the waiver is not ambiguous. The court upheld the trial court summary judgment ruling in favor of the YMCA.
Suggestion to the Reader
Look at the waiver in last week’s post again. You will see that the waivers are not significantly different, yet result different rulings. In this writer’s opinion, neither waiver was well-written and both were ambiguous because neither makes it clear whether the sidewalk is covered by the waiver. In many, or even most states, neither waiver would be enforced.
The expense and hassle of the lawsuit could have been avoided in each case had the waiver been drafted more explicitly. It would be wise to make a simple change such as adding the italicized language in the exculpatory sentence:
… from any and all responsibility or liability for injuries or damages resulting from participation in such activities, programs, equipment, machinery, and my use of such facilities (including sidewalks, parking lots, restrooms, showers, locker rooms, and hallways), ….
Your waiver is an important part of your risk management program. You need a waiver that is carefully drafted by someone who is has experience in writing waivers for recreation and sport businesses. This YMCA got away with a poor waiver – but, Tennessee is what you might call a lenient state when it comes to enforcing waivers. Most states have requirements that are much more demanding.