By Doyice Cotten

Courts in most states will enforce well-written liability waivers signed willingly by adults. Nevertheless, many people argue strongly against this protection for service providers. This post presents good arguments by one judge opposed to health club immunity from liability granted by such waivers.

Current New Jersey case law supports the enforcement of health club liability waivers. In fact, the Supreme Court of New Jersey recently determined to accept a stipulation for dismissal following a settlement of the matter by the parties. (Pulice v. Green Brook Sports & Fitness, L.L.C., 2018 N.J. LEXIS 1444) Of interest, one of the judges, Justice Barry Albin, dissented because he felt “the issue raised is one of paramount public importance and because the failure to address it now will have grave social consequences.”

The suit involved a negligence claim by an injured client who suffered serious and permanent injuries when a distracted health club trainer negligently dropped a dumbbell on her head. The appellate court upheld the trial court ruling enforcing the liability waiver signed by the client. A settlement was subsequently reached by the parties and was approved by the New Jersey Supreme Court. One judge, Justice Albin, dissented from the approval of the settlement because he wanted to hear the appeal, feeling that the issue of health club liability waivers should be re-examined by the court.

The New Jersey Supreme Court had addressed the issue in 2010 in Stilluti v. Casapenn Enterprises, LLC. The court ruled in support of the club and its liability waiver at that time. Albin, who dissented from that decision also, felt that the Pulice appeal should be heard because health club waivers involved an important matter of public interest.

Albin pointed out that the waiver was a contract of adhesion because it is offered “on a take-it-or-leave it basis, because the public has no bargaining power to alter the contract’s terms, and because the price of admission to a health club is to surrender one’s right to insist that the club provide a safe environment.”

Arguments Against Enforcing Health Club Liability Waivers

Even though this case is settled and finalized by the Supreme Court ruling, it is worth looking at the arguments put forth by Justice Albin because the issue is certain to arise again and should be of interest to all sport, recreation, and fitness providers who use a liability waiver.

Arguments follow:

1. A health club or gym should have a non-delegable duty to exercise reasonable care to ensure a patron’s health and safety. Our common law should not give license to health clubs and gyms to escape that duty through a standard-form, industry-wide exculpatory clause, as Stelluti now permits.
2. Albin further argued that while waivers are enforceable in New Jersey, “Exculpatory agreements have long been disfavored in the law because they encourage a lack of care.” He pointed out that “Business owners are in the best position to prevent the risk of harm to their customers.” Further, he emphasized that “a basic principle of our common law is that victims are entitled to compensation for the injuries they sustain at the hands of tortfeasors.”
3. Albin went on to declare that the New Jersey Supreme Court has held that contracts that are “inconsistent with the public interest or detrimental to the common good” are unenforceable. Further, he stated that “Allowing health clubs to dictate the terms of an agreement that eliminates their duty to exercise a reasonable degree of care toward their patrons is inconsistent with the public good.”
4. Finally, Albin re-stated his arguments in the Stelluti dissent “[t]ort law is not just about compensating victims, but also about preventing accidents.” He declared that New Jersey tort law should require health clubs to maintain their equipment in a reasonably safe manner and to hold their employees to a standard of due care to ensure against preventable accidents and the law should discourage [extreme] carelessness. He argued that the logic against exculpatory clauses is quite simple: “when business owners exercise due care, there are fewer accidents; when there are fewer accidents, there are fewer lawsuits; when there are fewer lawsuits, insurance premiums are more likely to go down rather than up. Additionally, when health clubs do not exercise due care, when our law does not incentivize preventing injuries, not only do the victims of a health club’s negligence suffer, but society bears the cost through the provisioning of unemployment insurance, social services, and health care.”

Albin summarized by suggesting that the solution lies with the state Legislature which has a prominent role to play since it is the preeminent author of public policy. The Legislature can prevent misguided court decisions by clearly stated public policy legislation. He added that he still has hope for a better-presented case that uses statistics to show the number of injured victims left uncompensated by the negligence of health clubs and the ultimate costs to society.

Comment: At least for now, New Jersey health club waivers of liability are enforced; however, Justice Albin’s arguments are legitimate and are held by many judges throughout the country. Remember, common law regarding waivers is not set in stone. Not only can state legislatures pass statutes that change it, but as the makeup of  a state supreme court changes over time, so, too, can the opinions of the court change. If your business is not a health club, consider the fact that these same arguments, and more, are made regarding liability waivers used by other sport, recreation, and fitness providers.

Photo Credit: Thanks to CherryPoint via Flickr.