Waivers & risk management for recreation, fitness & sport business

Sport Waiver Risk Fitness Law

Make Your Waiver Broad

Posted By: djcotten 28 October 2009

This article appeared in Fitness Management in May, 2008.

In a 2007 California waiver case, Georja Jones became a member of the Pritikin Longevity Center and Spa, a fitness center located within the Loews Santa Monica Hotel, Calif. She signed a membership agreement that consisted of several paragraphs. In paragraph seven, titled “Waiver of Liability,” Jones acknowledged that she was using the facility at her own risk, and waived the liability of the hotel. About a month later, she was injured when she tripped over a hose that was on an outdoor sidewalk on hotel property about 50 to 75 feet from the fitness center’s entrance. She subsequently sued, alleging negligence and premises liability. As its defense, the hotel claimed that the waiver signed by Jones released Loews Santa Monica Hotel from liability. The trial court declared a summary judgment in favor of Loews and Jones appealed [Jones v. Loews Santa Monica Hotel Inc., 2007 Cal. App. Unpub. LEXIS 5309].

Read on to find out how this case may be relevant to your fitness center, and how you can protect your own facility from this type of lawsuit.

What the waiver said

The waiver stated, “The SPA and HOTEL … shall not be liable — and the MEMBER hereby expressly waives any claim of liability — for personal/bodily injury or damages — which occur to any MEMBER, or any guest of any MEMBER, or for any loss of or injury to person or property. This waiver includes, but is not limited to, any loss, damage or destruction of the personal property of the MEMBER or the MEMBERS’ guest(s) and is intended to be a complete release of any responsibility for personal injuries and/or property loss/damage sustained by any MEMBER or any guest of any MEMBER while on the HOTEL and/or SPA premises, whether using exercise equipment or not.”

The court considering the Jones appeal stated that the exact release had been challenged in Benedek v. PLC Santa Monica (2002) 104 Cal. App. 4th 1351, and had been held to be clear, unambiguous and explicit in expressing the intent of the subscribing parties. The Benedek court stated that if a release of all liability is given, the release applies to any negligence of the defendant, and that it is only necessary that the negligence resulting in injury be reasonably related to the object or purpose for which the release is given. The Benedek court further ruled that the waiver released Loews from liability while on the premises, whether using the equipment or not. The court went on to say that a waiver of all premises liability in consideration for permission to enter a recreational facility for any purpose does not violate public policy.

Court Ruling

The Jones court, in applying the Benedek ruling, held that the waiver was clear, unambiguous and explicit in its purpose, and effectively releases Loews from liability for negligence while Jones is on the premises.

Risk management principles

Here are some guidelines for protecting your own fitness center.

Make your waiver broad enough to include all reasonable occurrences at your facility (e.g., on the premises, while using the equipment, while engaged in classes or group activities, during private workouts).
While this court upheld the waiver using the language “any claim of liability,” keep in mind that many courts require a specific reference to the “negligence” of the provider. Always include the term “negligence” to reduce the likelihood of ambiguity.
Note that the waiver uses the language, “occur to any MEMBER, or any guest of any MEMBER,” in an attempt to protect against litigation by injured guests. Whether this would provide the sought-after protection is extremely doubtful. A better practice is to have all guests also sign a waiver.

Photo credit: Mathias Klang

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