By Doyice Cotten
We often post reminders that two good rules to follow are: 1) Use a stand alone document for your waiver. Do not include it in a membership contract and do not combine it with a registration form. 2) Always make the waiver obvious – particularly if you are not following rule one. Make the waiver stand out so there is no question that the signer saw it, understood it, and realized the significance of what he or she was signing. In the following discussion, note that the waiver is a fairly strong waiver – yet it fails.
An April, 2015, Pennsylvania case (Hinkal v. Pardoe) illustrates what can happen when you do not follow these guidelines. Melinda Hinkal joined Gold’s Gym, signed a membership agreement with waiver, and was injured while working with Gavin Pardoe, a personal trainer. The trial court granted summary judgment in favor of the gym and trainer and Hinkal appealed to the appellate court.
The appellate court examined the membership agreement and found the following:
- The Gold’s Gym membership agreement is printed on a single, two-sided page.
- The only signature line is located at the bottom of the front side.
- The first line in the paragraph above the signature line provides, “[d]o not sign this [a]greement until you have read both sides. The terms on each side of this form are a part of this [a]greement.”
- This instruction is not set off from the rest of the paragraph and
- Is not in bold typeface, capital letters, or larger font, even though other terms, such as the “buyer’s right to cancel,” appear in bold and capital letters.
On the reverse side of the agreement are:
- 13 additional terms printed in light gray ink on pink carbon paper.
- All of these terms are single-spaced and printed in the same font size.
- The “Waiver of Liability; Assumption of Risk” clause at issue in this case is the 12th term,
- It is located approximately three-quarters of the way down the page, and is not differentiated in any manner from the surrounding paragraphs. It reads as follows:
- WAIVER OF LIABILITY; ASSUMPTION OF RISK:Member acknowledges that the use of Gold’s Gym’s facilities, equipment, services and programs involves an inherent risk of personal injury to Member and Member’s guests and invitees. Member voluntarily agrees to assume all risks of personal injury to Member, Member’s spouse, children, unborn children, other family members, guests of invitees and waives any and all claims or actions that Member may have against Gold’s Gym, any of its subsidiaries or other affiliates and any of their respective officers, directors, employees, agents, successors and assigns for any such personal injury (and no such person shall be liable for to [sic] Member, Member’s spouse, children, unborn children, other family members, guests or invitees for any such personal injury), including, without limitation (i) injuries arising from use of any exercise equipment, machines and tanning booths, (ii) injuries arising from participation in supervised or unsupervised activities and programs in exercise rooms, running tracts, swimming pools, hot tubs, courts or other areas of any Gold’s Gym, (iii) injuries or medical disorders resulting from exercising at any Gold’s Gym, including heart attacks, strokes, heat stress, sprains, broken bones and torn or damaged muscles, ligaments or tendons and (iv) accidental injuries within any Gold’s Gym facilities, including locker rooms, steam room, whirlpools, hot tubs, spas, saunas[,] showers and dressing rooms. Member acknowledges that (x) Gold’s Gym does not manufacture any of the fitness or other equipment at its facilities and (y) Gold’s Gym does not manufacture any vitamins, food products, sports drinks, nutritional supplements or other products sold at its facilities; accordingly, neither Gold’s Gym, any of its subsidiaries or other affiliates nor any of their respective officers, directors, employees, agents, successors or assigns shall be held liable for any such defective equipment or products. Member shall indemnify each of Gold’s Gym, its subsidiaries and other affiliates and each of their respective officers, directors, employees, agents, successors and assigns (and “Indemnified Party”) and save and hold each of them harmless against and pay on behalf of or reimburse any such Indemnified Party as and when incurred for any Losses which such Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of any claim that is the subject of the waiver set forth above. The provisions of this paragraph shall survive the termination of this Agreement and Member’s membership.
The reverse side of the agreement
- Does not have any space for a signature or for initials where a signatory may acknowledge the additional terms.
- Neither does the front side of the agreement require separate confirmation that the signatory has read and accepted the additional terms on the reverse side.
- Furthermore, it is undisputed that Appellant did not read the waiver of liability language on the reverse side of the agreement, and
- That no employee of Gold’s Gym verbally informed her that the terms of the agreement included an exculpatory clause.
In Beck-Hummel v. Ski Shawnee, Inc. (2006), this Court held that three principles should be applied to determine whether a reasonable person should have noticed a waiver. They are:
1) The placement of the waiver in the document,
2) The size of the print, and
3) Whether the waiver was highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document.
This court applied those principles and concluded that the waiver in the Gold’s Gym membership agreement is unenforceable because it is not sufficiently conspicuous. The court noted:
- The waiver is not in immediate proximity to the signature line, as the signature line is on the front side of the document.
- The font size of the waiver is not distinct from the other 12 terms on the reverse side,
- The font size of the sentence advising Appellant to read both sides of the agreement is not distinct from the surrounding text.
- This is in contrast, for example, to the font in the paragraph explaining the “Buyers Right to Cancel” on the front side.
- The waiver is printed in light gray ink on pink carbon paper and is difficult to read.
- It is undisputed that Appellant did not read the language of the membership agreement, and
- The language of the agreement itself is not so conspicuous as to put the user on notice of the waiver.
- The sentence advising Appellant to read both sides of the agreement does not contain a description of the additional terms or an indication of their potential significance.
The court concluded that, since Gold’s Gym took no other steps to alert Hinkal that she was waiving her right to initiate personal injury actions against Gold’s Gym by signing the membership agreement, we cannot conclude as a matter of law that the waiver represents the intent of Appellant to waive said right. Therefore, the waiver is unenforceable because it was not read and was not sufficiently conspicuous.
The take-away from this is: Look at your waiver. Ask yourself how it would stand up under the foregoing scrutiny. If your waiver is part of your membership contract, take it out and make it into a separate document.