By Doyice Cotten

Beatrice Oliveri, was given two free sessions to work out at OsteoStrong. She suffered from osteoporosis and her doctor advised her to be careful. She completed a wellness assessment and signed the following waiver of liability:

I am physically capable of participating in an exercise program or the OsteoStrong system. I have either received permission from my doctor to perform the exercise and the OsteoStrong system or I decided to participate in the OsteoStrong program without consulting my physician and I assume all responsibilities for my decision to engage in the OsteoStrong program. I waive my right to pursue legal action against OsteoStrong, its owners, partners, and agents for any physical or mental anguish that I may incur as a result of my participating with the OsteoStrong system.

 She expressed fear of the exercises to the instructor who assured her that the program was “completely different” and “there was minimal, very minimal risk.” She quickly executed the first exercises with no pain. At her second session, she had four exercises to execute and following the forth, her instructor told her to repeat it and to “do it harder, harder.” As she attempted to repeat it, she felt and heard a “pop” and was later diagnosed with a thoracic compression fracture.

The Lawsuit

Oliveri alleged: failing to warn of a known dangerous condition; 1) by failing to instruct her on the use of the machine; 2) by allowing use of dangerous machines; 3) by failing to supervise employees; and by 4); failing to inspect and maintain the equipment.

OsteoStrong moved for summary judgment claiming 1) that Oliveri waived legal action by signing the written waiver and 2) that she assumed the risk of injury under the theories of express assumption of the risk, primary assumption of the risk, and implied assumption of the risk.

Oliveri argued that the waiver was ambiguous and therefore invalid.

The trial court held that summary judgment was warranted on the grounds of waiver. It found the waiver  was clear and unambiguous and expressly waived her right to sue for her injuries. The trial court upheld the waiver.

The Appellate Court (Oliveri v. OsteoStrong, 2021).

On appeal,  Oliveri contends there are genuine issues of material fact as to whether the waiver she signed is clear and unambiguous and whether she expressly assumed the risk of her injury.

“Summary judgment is appropriate when (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion adverse to the nonmoving party.”

Oliveri contended the trial court erred in finding that the waiver in her wellness assessment was clear and unambiguous. She argues the contract language does not mention negligence or liability and that “physical anguish” has more than one meaning. Thus, she claims summary judgment was not warranted.

The court stated that “For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence. It follows that in order for a conscious acceptance to be made, an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence.” The court added that waivers for future tortious conduct are generally not favored by law and are narrowly construed. It explained that such releases are generally enforced if the intent of the document is clearly and unambiguously expressed. It specified that ambiguity exists when an issue could involve more than one reasonable interpretation; in interpreting a waiver, words are to be given their ordinary meaning.

The most important part of the waiver was the sentence “I waive my right to pursue legal action against OsteoStrong. . . for any physical or mental anguish that I may incur . . . .” which Osterostrong relied on for protection. The term “anguish” was defined as “extreme pain, distress, or anxiety.” In contrast “Injury” is defined as “hurt, damage, or loss sustained” or “an act that damages or hurts.” The court acknowledged that a waiver does not have to use the word “negligence” to effectively waive such a claim in Ohio, but emphasized that  the waiver at issue does not effectively waive a negligence action, as damages in negligence are not required to rise to the level of “anguish” to be recoverable. The court stated that Oliveri’s allegation of error has merit “because the release language does not waive and release OsteoStrong from claims for all injury.”

Ruling

Consequently, this court reversed the trial court’s decision and remanded the case. In other words, the waiver failed to protect OsteoStrong from liability for its own negligence.

 Risk Management Take-away

While many states do not require the inclusion of the word “negligence” in a waiver of liability, virtually all will require that the intent of the waiver be clear and unambiguous. Hence, this writer strongly recommends that all waivers intended to protect a provider from liability for provider negligence should include language including “negligence.” What word could be more clear and less ambiguous than “negligence.” Use of a substitute term (anguish) in this case caused quite costly to OsteoStrong.  Also, keep in mind that the word “negligence” is required in more than a dozen states.

A risk is that was not at issue in this case — though it might well have been — is that of safety assurances voiced by club employees. Employers should constantly caution employees to NOT make assurances the activities or equipment is safe.

Photo Credit: Thanks to Nenad Stojkovic  via Flickr.