A Change in Arkansas Waiver Law

By Doyice Cotten and Mary Cotten

In Waivers & Releases of Liability 7th ed. (Cotten, D. and Cotten, M, 2010), Arkansas was classified as a Strict state when it comes to enforcing waivers.  A recent U.S. District Court ruling upholding the waiver in Kotcherquina v. Fitness Premier Management (2012) has caused a change in the Arkansas Strict classification. In the book, the Arkansas law is summed up by the following:

The Supreme Court stated that waivers are not invalid per se, but since they are disfavored, two rules of construction apply to them  (Jordan v. Diamond Equipment  &  Supply Co., 2005). 1) They are to be strictly construed against the relying party.    2) It is possible to avoid liability through such a contract, but the contract must at least clearly set out what negligent liability is to be avoided.

In Kotcherquina, the plaintiff was injured while working with a personal trainer furnished by the club. No details of the incident are given. The plaintiff signed a membership agreement that included a waiver of liability for the club and another for the personal trainer. They follow, in total:

Club Waiver

Waiver and Release: I am aware that physical exercise is a calculated risk activity and that using the Club’s exercise machines, free weights, tanning, personal training services, and any other facilities and related services offered by the Club involves inherent risks and dangers, including loss of or damage to personal property and serious personal injury or death. I am aware of and understand the scope, nature, and extent of the risks involved in the activities contemplated by this Release and Waiver. I voluntarily assume and freely choose to incur any and all such risks of loss, damage, or injury, including death, including, but not limited to, the risk of harms caused in whole or in part by the unintended conduct of the Club.[bold italics added]

Personal Trainer Waiver

I am aware that weight training is a calculated risk activity and that working with a Fitness Premier/Personalized Training Inc. Personal Trainer involves inherent risks and dangers, including loss or damage of personal property, serious personal injury and/or death. I am aware of and understand the scope, nature and extent of the risks involved in the activities contemplated by this Release and Waiver. I voluntarily assume and freely chose (sic) to incur any and all such risks of loss, damage or injury, including death, but not limited to, the risk of harms caused while or part of by the unintentional conduct of a Fitness Premier/Personalized Training Inc. Personal Trainer. I agree to indemnify and hold harmless Fitness Premier/Personalized Training Inc. Personal Trainer and Fitness Premier against any and all loss, damage, cost and expense which may result to me as a result of my training.[bold italics added]

Look first at the risks that are included in each club waiver. The first three highlighted phrases in each refer to inherent risks of the activity – not to the negligence of the club. The crucial question is the meaning of the fourth highlighted phrase: does harms caused in whole or in part by the unintended (unintentional in the second waiver) conduct of the Club represent negligence? Unintended conduct (or unintentional conduct) is a new term to the authors; in more than a thousand waiver cases, we have not seen negligence described as unintended conduct. Negligence can occur from intended conduct (which the club may not realize will cause injury). And certainly, not all unintended conduct would be considered negligent conduct.  In no sense is unintended or unintentional conduct synonymous with negligence.

Let’s go back to the two rules in construction that the Arkansas Supreme Court states are necessary for a waiver to be enforced, looking at the second one first. The contract must at least clearly set out what negligent liability is to be avoided. Neither waiver appears to clearly and unambiguously specify that the client is waiving liability for negligence.

Further, the first requirement specifies the waiver is to be strictly construed against the relying party. In this case, it seems the court is doing just the opposite. The court justified its ruling stating (1) plaintiff knew the risks because she had been a member of a club in the past and had worked with a trainer previously (Authors’ Note: As a previous member, she would be aware of only the inherent risks of the activity.); (2) plaintiff had benefitted from the activity; (3) plaintiff admitted she knew the meaning of the word waiver (Authors’ Note: Her understanding the meaning of  “waiver” is meaningless; the question is “Would a reasonable person know, from the language of the waiver, that it was a waiver of negligence?” Further, referring back to the second Supreme Court criteria – a waiver must “clearly and unambiguously specify that the client is waiving liability for negligence.”); and (4) there is no evidence of fraudulent representations.

While the Jordan Arkansas Supreme Court used language that indicates strict standards for enforcement of waivers, the Kotcherquina court’s recent application of language used by the Arkansas Supreme Court in Finagin v. Arkansas Development Finance Authority ( 2003) seems to be in conflict.  Finagin stated that the court is not restricted to the literal language of the contract but will also consider the facts and circumstances surrounding the execution of the release in order to determine the intent of the parties.

In light of Kotcherquina, Finagin, and the enforcement of a waiver that in most states would be ruled to be ambiguous, it seems that the criteria for evaluation of waivers in Arkansas has changed. Therefore, the authors are no longer able to justify the Strict classification for the stance of Arkansas courts toward waivers and change the classification to Lenient.