Featured Article:

Two Health Club Cases Clarify Delaware Waiver Law

By Doyice Cotten

5023135749_93272abcc1_z

Reminder: There is a new Fitness Law Academy Newsletter designed specifically for fitness professionals. It is written by Dr. JoAnn Eickhoff-Shemek, a fitness industry authority. And the best news of all —  its FREE!.    Click here for your free subscription!   djc

In 2016, the Delaware Supreme Court addressed a case in which a Planet Fitness health club member was injured when a cable broke on a seated rowing machine (Ketler v. PFPA, LLC). In a subsequent Superior Court case in 2017, a member of 24/7 Club Fitness was injured when the rubber grip on the pull-up bar detached causing the member to lose her grip on the bar (Mackenson v. Anthony).

Each club relied upon a waiver of liability contained in the club membership agreement. The waivers were similar in nature. Pertinent parts of the Planet Fitness waiver were:

In consideration of my participation . . . I understand and voluntarily accept this risk and agree that Planet Fitness will not be liable for any injury, . . . resulting from the negligence of Planet Fitness or anyone on Planet Fitness’ behalf … . Accordingly, I do hereby forever release and discharge Planet Fitness from all claims … or causes of action.

The waiver used by 24/7 Club Fitness read in part:

24/7 Club Fitness … are not responsible for any injury … suffered while participating in club activities, using equipment, … for any reason whatsoever, including ordinary negligence on the part of CF, its agents, or employees. … I am voluntarily participating in club activities with knowledge of dangers involved and hereby release and covenant not to sue CF, … from any and all present or future claims resulting from ordinary negligence on the part of CF or others listed.

 

The Planet Fitness Case

The Supreme Court stated that waiver of prospective negligence is valid if three conditions are met.

1) The waiver must be “clear and unequivocal.” It pointed out that the Planet Fitness waiver expressly releases the club from any liability for any injury resulting from PF negligence; it specifies “any and all claims or causes of action.” Thus, the first condition was met.

2) The waiver must not be unconscionable; it then defines “unconscionable” as follows:

  • A contract in which “no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other.”
  • Mere disparity between the bargaining powers of the parties does not constitute unconscionability.
  • There must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties.

The court then stated that the plaintiff had a choice to accept the membership or not. Thus, the second condition was met.

3) The waiver must not violate public policy. The court stated that public policy is typically determined by the Delaware General Assembly; and since no statute is found that bars waivers of prospective negligence, they are not against public policy. The third condition was met; the waiver was ruled enforceable; and the Supreme Court affirmed the trial court ruling granting summary judgment to Planet Fitness.

The 24/7 Club Fitness Case

The Superior Court followed the precedent of the Supreme Court using near identical language. There was one more issue in this second case. The plaintiff had signed the waiver and membership agreement in the space allotted for the legal guardian of a minor instead of the space allotted for the member signature. The court ruled that this error was inconsequential since the intent was clear, his name was listed at the beginning of the document, he admitted he was a member, and he initialed the document in several places.

The 24/7 Club Fitness motion for Judgment on the Pleadings was granted.

Photo Credit: Thanks to Lisa Picard via Flickr.

Read the Article

Recent Articles:

Hot Air Balloons: Is a Balloon a Common Carrier in California?

  By Doyice Cotten The issue as to whether an activity or mode of transportation is a common carrier can determine the duty owed to passengers. A recent California case (Grotheer v. Escape Adventures, Inc., 2017), addressed the issue of whether a hot air balloon is a common carrier. The court defined a common carrier of persons as anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.) The duty that a common carrier owes to its clientele depends upon whether the ride is gratuitous or if there is a fee charged.... [read more]

Connecticut Court Admits Waiver to Show Plaintiff Knew the Inherent Risk of Horseback Riding

By Doyice J. Cotten Stefana Pecher took riding lesson at Showtime Stables which was owned by Rhea Distefano. After about six lessons, the horse ridden by Pecher was acting lazy, was not obeying commands, and was reacting slowly. She was told by the instructor to use the crop to tap lightly on the shoulder of the horse; the horse bolted, causing her to fall and injure herself. During the trial, the defense entered into evidence a photo of a warning sign posted at eye level at the barn door and a liability waiver signed by the plaintiff.... [read more]

Court in New York Ski Case Rules that Parental Waivers Allowing Minors to Ski are Valid & Enforceable

By Doyice Cotten Bryan DiFrancesco’s son was injured while on a ski lift with a ski instructor employed by the defendant Win-Sum Ski Corp [DBA Holiday Valley, Inc.]. The uncle of the boy had signed a waiver of liability and assumption of inherent risks so that the 5 year-old could ski. The boy fell from the lift and sustained severe injuries. The father subsequently filed a suit in federal court against the ski resort on behalf of the boy (DiFrancesco v.... [read more]

Does an Indiana Climbing Wall Waiver Protect Against Claim Negligent Training of Employees?

By Doyice Cotten Alexis Wiemer visited Hoosier Heights Indoor Climbing Facility in October, 2014. Weimer attended a facility orientation in which an employee, Kayli Mellencamp, conducted an employee-guided training on how to boulder, belay, and top rope climb. Wiemer then signed a Waiver form. Pertinent parts of the waiver form read: RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto,... [read more]

Two Virginia Courts Admit Redacted Waivers to Show Plaintiff Understood the Risks

By Doyice Cotten James McConnel was injured while participating in Segway Polo associated with Omni Hotels Management Corp. The issue came up as to the admissibility of the waiver signed by McConnel (McConnel v. Omni Hotels Mgmt. Corp., 2017).  Since prospective waivers of liability are void as against public policy under Virginia law (Hiett v. Lake Barcroft Cmty. Ass’n, Inc., 1992),  Omni asked the court to rule that the “Segway Personal Transporter Tours Liability Release Form”... [read more]

Can One Spouse Sign the Waiver for the Other Spouse?

By Doyice Cotten Often both a husband and a wife attend a sport, recreation, or fitness facility to participate. The business has a requirement that everyone signs a waiver before participating. Is there a problem if one of the couple signs his or her own waiver and then signs the waiver of the spouse? In the 2017 case, Burns v. Parks (2017 Pa. Super. Unpub. LEXIS 4043), Joseph and Dawn Burns entered Sky Zone Indoor Trampoline Park to participate.... [read more]