By Doyice Cotten
It is well-established that the common law imposes a duty of care on business owners to maintain safe premises for their business invitees (clients or potential clients). Justification of this is that the law recognizes that an owner is in a better position to prevent harm than is the invitee. Courts in most states recognize, however, that participation in sports will result in injuries and grant businesses providing sport, recreation, and fitness activities permission to contract away their liability for injuries resulting from provider negligence through the use of waivers of liability.
There have been a number of cases that tend to support one side or the other. Two of the most popular cases Walters v. YMCA, 2014 and Crossing-Lyons v. Towns Sport International, Inc., 2017 have been discussed previously on Sportwaiver.com. In another post, Will My Waiver Protect Me When Someone Has An Ordinary “Slip And Fall?”, we looked at rulings on several cases that supported the argument that the effectiveness of waivers is limited when it comes to issues of duty of care in maintaining a safe premises.
But, we want to point out there is another side to the argument. An up-to-the minute 2019 Pennsylvania case (Sell v. Wellsboro Hotel Co.) gives us a different perspective on the issue. Mrs. Sell used the hotel swimming pool and hot tub at the hotel fitness center. She walked barefoot from the pool area down a tiled hallway toward the locker rooms; the hallway is a part of the common area that connects to the lobby. She slipped in a puddle in the hallway and fractured her femur. The hotel was granted summary judgment on the basis of the hotel waiver of liability. The pertinent parts of the waiver included:
It is expressly agreed that all exercises and use of the facilities shall be undertaken at member’s own risk. The Penn Wells and managers, officers and directors shall not be liable for any claims, demand, injuries, damages, actions or causes of action for personal injury or property damage incurred by member, member’s family, or guests while on premises. (Underline added.)
In addition, the third paragraph of the Agreement is titled “RULES OF CONDUCT,” and includes general rules, including:
No wet bathing suits or wet towels are permitted in the exercise room or lobby area.
Because floors can be slippery, in consideration of other members and guests, please towel off after exiting the pool before entering the corridor to the locker room.
Please be aware that the locker rooms are also the public restrooms for the lobby and breakfast area.
On appeal, the plaintiff argued first that the “clause does not apply to an injury caused by slipping en route to the locker room, as this activity was ancillary to the fitness activities contemplated by the Membership Agreement.” A second argument was that the waiver “does not specifically mention either negligence or negligence by Wellsboro.”
The court responded that the waiver was clear in that the waiver referred to the use of the facilities and to injuries while on the premises. As to the failure to include the word “negligence” in the waiver, the court pointed out that Pennsylvania law does not require its use [though it would certainly be better and eliminate possible ambiguity.] The court pointed out that the hotel would not be liable for any claims and that “This obviously included a bar against suits arising from Wellsboro’s own negligence.”
As a third argument, Sell claimed the waiver should be construed to mean that it did not apply to the hallway where the injury occurred since that was not part of the facilities belonging to the Fitness Center; Sells claimed facilities should be construed to mean the exercise room and the swimming pool.
The court disagreed pointing out that the membership agreement indicated that Fitness Center membership allows for use of the pool, pool area, pool facilities, exercise room, cardio and weight room, lobby area, corridor to the locker room and locker rooms.
The court affirmed the judgment of summary judgment in favor of the defendant.
Note: The authors plan to publish a much more complete examination of law regarding this issue in an upcoming post.
Photo Credit: Thanks to Oatsy40 via Flickr.