Injured Party Did Not Sign the Waiver – What Happens Now?
This article was taken from Waivers & Releases of Liability 7th ed. and updated for SportWaiver.com. Click SportWaiver for a limited time special price on the book.
By Doyice Cotten
Sometimes one person signs a waiver for himself or herself and for others, but the person injured or killed is the non-signing party. For instance, many health and fitness clubs utilize a waiver that is located within a membership contract and have the head of the household sign the contract. In doing so, the club is seeking to immunize itself from litigation in the event of injury to the signer, the spouse, and all of the children. Will the waiver protect the health and fitness club?
- In a Georgia case (Hembree v. Johnson, 1997) the wife signed a joint health club agreement including a waiver. Months later the husband signed an addendum making it an individual membership, but signed no waiver. The original waiver by the wife was upheld against the husband.
- In a Kansas case (Ko v. Bally Total Fitness Corporation, 2003), a man took over another’s health club membership contract, signed no waiver, and was held to the waiver signed by the original owner.
- A Wisconsin plaintiff had signed a ski waiver on behalf of his entire family (Yauger v. Skiing Enterprises, Inc., 1996). When a family member was injured, the court enforced the waiver saying that the waiver was signed on behalf of and for the benefit of the non-signing party.
- In Idaho, a husband signed a snowmobile rental agreement for himself and his wife (Hanks v. Sawtelle Rentals, Inc., 1999). The court said that the waiver signed by the husband did not obligate the non-signing spouse.
- A husband in Wyoming signed a waiver and indemnification rafting agreement (Madsen v. Wyoming River Trips, Inc., 1999). The company was not protected by the indemnification agreement.
- In a California case, a man who had rented a houseboat had signed a waiver prior to an injury of a passenger (Shrayber v. Holiday Harbor, Inc., 2003). The Shrayber court stated that the waiver cannot diminish the rights of a non-signing passenger .
- Likewise, in a Texas case (Tabrizi v. L.A. Fitness International, LLC., 2011), a club member brought a guest to the health club. The guest, contrary to normal procedure, did not sign a waiver and subsequently slipped and fell while exiting the swimming pool. LA Fitness claimed the waiver defense premised on the member host’s waiver. The court ruled that the waiver signed by the host provided no protection against the claim of Tabrizi.
A good rule to follow is that when an agreement affects more than one person, it is ALWAYS BEST to have all affected parties sign the agreement. Again it would be wise to consult a knowledgeable local attorney regarding the pertinent law in your state.