Defective Rowing Machine & No “Out of Order” Sign — Waiver Protected

By Doyice Cotten

AnneMichelle Johnson, a member of Gold’s Gym Rockies, LLC, sustained an injury when trying to use a rowing machine. She set her usual resistance, tried to pull, heard a pop in her back, and the pull bar did not move. She set resistance at zero, tried to pull again, and it did not move. About that time an employee came over and told her it was broken and he was there to fix it.

She found her back was severely injured and filed a premises liability suit alleging negligence (Johnson v. Gold’s Gym Rockies, LLC, 2019). The club claimed protection based on two exculpatory items in the membership agreement – a waiver and an assumption of risk. They follow:

WAIVER OF LIABILITY: MEMBER ACKNOWLEDGES THAT THE USE OF GOLD’S GYM’S FACILITIES [AND] EQUIPMENT . . . INVOLVES AN INHERENT RISK OF PERSONAL INJURY TO MEMBER. . . . MEMBER VOLUNTARILY AGREES TO ASSUME ALL RISKS OF PERSONAL INJURY TO MEMBER . . . AND WAIVES ANY AND ALL CLAIMS OR ACTIONS THAT MEMBER MAY HAVE AGAINST GOLD’S GYM . . . FOR ANY SUCH PERSONAL INJURY . . . INCLUDING, WITHOUT LIMITATION: (I) INJURIES ARISING FROM USE OF ANY EXERCISE EQUIPMENT [OR] MACHINES . . .; (III) INJURIES ARISING FROM GOLD’S GYM’S NEGLIGENCE, WHETHER DIRECT OR INDIRECT; (IV) INJURIES . . . RESULTING FROM EXERCISING AT ANY GOLD’S GYM, INCLUDING . . . SPRAINS, BROKEN BONES AND TORN OR DAMAGED MUSCLES, LIGAMENTS OR TENDONS . . . .

 

ASSUMPTION OF RISK AND INDEMNIFICATION: Member acknowledges that Gold’s Gym does not manufacture any of the fitness or other equipment at its facilities . . .; accordingly, [ ] Gold’s Gym . . . shall [not] be held liable for any such defective equipment. . . . Member shall indemnify Gold’s Gym . . . and save and hold [it] harmless against and pay on behalf of or reimburse [Gold’s Gym] as and when incurred for any losses which [Gold’s Gym] may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of any claim that is the subject of the waiver set forth above.

Colorado Waiver Law

“Under Colorado law, waivers of liability have long been disfavored: it is also well-established that such agreements cannot shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties.”

  • But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.
  • The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. Jones v. Dressel, 1981).
  • In Jones, the Colorado Supreme Court established the following four factors when determining the enforceability of a waiver:
    • (1) the existence of a duty to the public;
    • (2) the nature of the service performed;
    • (3) whether the contract was fairly entered into; and
    • (4) whether the intention of the parties is expressed in clear and unambiguous language

A waiver must satisfy all four factors to be enforceable.

Addressing the Jones Factors

There was no argument regarding the first three Jones factors. The plaintiff, however, challenged the fourth factor – as to whether the intent of the two exculpatory sections was clear and unambiguous.

The Colorado Supreme Court has provided guidance saying “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”

  • A court may “examine the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.”
  • A court may also “take into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision.”

In this case, the Johnson court found that it was the intent of the parties to extinguish liability, and this intent was clearly and unambiguously expressed. The language in the two sections is “clear and unambiguous, and these provisions are not overburdened with extensive or complex legal jargon. The provisions are not inordinately long (less than half a page) or complicated.”

The Court also noted that the organization of the agreement and placement of its release language make it “unrealistic that the Exculpatory Provisions could be missed or misunderstood.  Each provision has its own subheading, written in bold font with all capital letters and underlined.” It added that the waiver font was larger font than the rest of the page, and Plaintiff signed the Membership Agreement directly underneath these provisions.

Further, in the deposition of the plaintiff, she admitted that she “saw this instruction, read the entire Membership Agreement, read and understood the Waiver of Liability provision, and understood the effect of executing the provision.” The court noted that “an injured party’s subsequent acknowledgment that he understood the meaning of the provision” could be used in judging the clarity and ambiguousness of a waiver.

The court noted that if Johnson meant to say that the reference to defective fitness equipment is not in the correct exculpatory provision (but is in the assumption of risk), she did not argue as to why it would matter.  Johnson seems to claim that Gold’s was negligent for not putting an Out of Order sign on the machine and failing to warn patrons. The court declared that it was abundantly clear that the waiver exculpated Gold’s from liability for both

Summation

The Court cited Colorado law which says it is not necessary “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” It added that the waiver makes clear that the intent of the parties was to “extinguish liability for Plaintiff’s type of claim.” The Court found the claim to fall within the scope of the enforceable Exculpatory Provisions; thus, summary judgment for the club was ruled appropriate against Plaintiff.

Photo Credit: Thanks to Marco Verch via Flickr.