Careful Waiver Construction Results in Protection for a Tennessee YMCA

By Doyice Cotten

8697450198_95c3256c65_zSandra Gibson joined the Rutherford County YMCA and signed a liability waiver. At a later date, she was injured when she tripped on an allegedly uneven or cracked sidewalk about 20 feet from the entrance to the YMCA.

She filed suit alleging negligence by the YMCA. The trial court denied the YMCA’s motion for summary judgment. The YMCA appealed claiming protection from the waiver signed by Gibson. The waiver reads:

In consideration of gaining membership and/or being allowed to participate in the activities and programs of the YMCA of Middle Tennessee (“YMCA”) and to use its facilities (whether owned or leased), equipment and machinery, I do hereby waive, release and forever discharge the YMCA and its officers, agents, employees, volunteers, representatives, directors and all others from any and all responsibility or liability for injuries or damages resulting from participation in such activities or programs or my use of such facilities, equipment or machinery, even if such damage or injury results from a negligent act or omission. [Emphasis added.]

The court summarized Tennessee law from a few citations:

  1. Exculpatory agreements, such as the one signed by Appellee, have long been enforceable in Tennessee.
  2. [P]arties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence.
  3. These agreements are analyzed under the doctrine of express assumption of the risk. “Express assumption of the risk refers to an express release, waiver, or exculpatory clause, by which one party agrees to assume the risk of harm arising from anotherparty’s negligence.”
  4. In Tennessee, express assumption of the risk is a complete defense to liability.
  5. Because such agreements are contractual in nature, we employ the familiar rules of contract interpretation.
  6. When interpreting contractual language, courts look to the plain meaning of the words in the document to ascertain the parties’ intent.
  7. If the language is clear and unambiguous, the literal meaning controls the outcome of the dispute.

Gibson argued that “she did not contemplate tripping and falling on a sidewalk in front of the YMCA when she signed the release.” The court answered that whether or not she contemplated that exact injury is immaterial because the agreement was not ambiguous. The court stated that under Tennessee law, summary judgment is appropriate when the moving party can demonstrate that there is no genuine issue  of material fact.

Here, the trial court did not find ambiguity in the agreement; in fact,  it found that, in entering the facilities, Gibson was using the facilities which was  “contemplated by the parties in the signing of the release.” In this case, the appellate court held that summary judgment on behalf of the defendant was appropriate. Thus the court reversed the trial court ruling and granted summary judgment; the case was remanded to the trial court for any further proceedings.

Risk Management Take-away

Although this waiver was very brief, it did provide that it applied to participation in such activities or programs and to use of such facilities, equipment or machinery. Keep in mind, however, that Tennessee does not maintain stringent requirements for the enforcement of waivers. This waiver would NOT be enforced in many jurisdictions. Some might question whether “facilities” include the sidewalk outside the building. The language might be made broader by “participation in such activities or programs or my use of such facilities (including all indoor areas and YMCA sidewalks and parking areas), equipment or machinery.

Recommended: Waivers & Releases of Liability (9th ed.), by Cotten & Cotten. The book includes hundreds of suggestions for writing an effective waiver plus waiver law for every state.

Photo Credit: Thanks to   torbakhopper at Flickr.