By Doyice Cotten
Many, or even most, waivers are written in such a manner as to include seemingly all mishaps that can occur to the client. There are many cases illustrating that the power of a liability waiver is not unlimited.
In a 2015 Illinois case (Hawkins v. Capital Fitness, Inc.), Hawkins signed the following waiver:
“MEMBER ACKNOWLEDGES THAT EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES OF THE COMPANY OR OF THEIR AFFILIATES NATURALLY INVOLVES THE RISK OF INJURY AND MEDICAL DISORDERS, INCLUDING DEATH, WHETHER MEMBER, SOMEONE ELSE, SOME ACTIVITY OR SOMETHING CAUSES IT. MEMBER AGREES THAT MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITIES AND SERVICES OF THE COMPANY AND THEIR FACILITIES, AT SUCH PERSON’S OWN RISK. SUCH ENGAGEMENT AND USE INCLUDES, WITHOUT LIMITATION, USE OF THE EQUIPMENT ***. YOU AGREE THAT YOU ARE VOLUNTARILY (A) PARTICIPATING IN THESE ACTIVITIES AND USING THE EQUIPMENT AND FACILITIES BASED ON SUCH PERSON’S OWN ASSESSMENT OF THE RISKS AND BENEFITS *** AND (B) ASSUMING ALL RISK OF INJURY ***.
MEMBER SHALL HOLD COMPANY AND THEIR [***3] AFFILIATES *** HARMLESS FROM ANY AND ALL LOSS, CLAIM, INJURY, DAMAGE AND LIABILITY SUSTAINED OR INCURRED BY MEMBER FROM OR ARISING OUT OF THE NEGLIGENT ACTS AND OMISSIONS AND ALLEGED NEGLIGENT ACT AND OMISSIONS AND OTHER ACTS AND OMISSIONS, OF ANY OF THE RELEASED PARTIES, ANY PERSON AT THE FACILITY OR ANYONE ELSE, OR ANY OCCURRENCE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING OUT OF OR IN ANY WAY RELATED TO MEMBER’S PRESENCE AT OR USE OF THIS FACILITY *** WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE *** TO RELEASE AND DISCHARGE RELEASED PARTIES FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION, AND DO HEREBY WAIVE ALL RIGHTS THAT YOU MAY HAVE *** TO BRING A LEGAL ACTION OR ASSERT A CLAIM, FOR INJURY OR LOSS OF ANY KIND AGAINST ANY [**445] OF THE RELEASED PARTIES ARISING OUT OF THE NEGLIGENT ACTS OR OMISSIONS OR OTHER ACTS OR OMISSIONS OF ANY OF THE RELEASED PARTIES OR ANYONE ELSE AT THE FACILITY *** OR ARISING OUT OF OR RELATING TO PARTICIPATION BY YOU IN ANY OF THE ACTIVITIES, OR YOUR USE OF THE EQUIPMENT, FACILITIES OR SERVICES ***. THIS HOLD HARMLESS FROM AND WAIVER AND RELEASE OF ALL LIABILITY INCLUDES, WITHOUT LIMITATION, (i) INJURIES, DAMAGES OR DISEASES WHICH MAY [***4] OCCUR AS A RESULT OF (A) YOUR USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE, (B) YOUR USE OF ANY EXERCISE *** EQUIPMENT, (C) IMPROPER MAINTENANCE OF ANY EXERCISE *** EQUIPMENT OR FACILITIES *** AND (ii) INJURIES OR MEDICAL DISORDERS RESULTING FROM EXERCISE, OR USE OF EQUIPMENT OR FACILITIES, AT THE FACILITY OR ANY OF THE OTHER FACILITIES ***.”
The waiver included a number of passages that broadened the scope of the waiver.
- That member engages in all exercise *** and uses all facilities and services of the company and their facilities, at such person’s own risk.
- Such engagement and use includes, without limitation, use of the equipment
- Member shall hold company and their affiliates *** harmless from any and all loss, claim, injury, damage and liability sustained or incurred by member from or arising out of the negligent acts and omissions and alleged negligent act and omissions and other acts and omissions, of any of the released parties, any person at the facility or anyone else, or any occurrence arising out of or related to this agreement or arising out of or in any way related to member’s presence at or use of this facility
- Hereby waive all rights that you may have *** to bring a legal action or assert a claim, for injury or loss of any kind against any of the released parties arising out of the negligent acts or omissions or other acts or omissions of any of the released parties or anyone else at the facility *** or arising out of or relating to participation by you in any of the activities, or your use of the equipment, facilities or services
- This hold harmless from and waiver and release of all liability includes, without limitation,
- (i) injuries, damages or diseases which may occur as a result of (a) your use of any facility or its improper maintenance, (b) your use of any exercise *** equipment, (c) improper maintenance of any exercise *** equipment or facilities *** and
- (ii) injuries or medical disorders resulting from exercise, or use of equipment or facilities, at the facility or any of the other facilities
Hawkins was subsequently injured when he sat on a bench in front of a three by eight foot mirror hanging on the wall. As he performed arm curls using free weights, another patron bumped the mirror causing it to fall from the wall and strike Hawkins in the head before he could avoid it.
Hawkins sued claiming negligence in failing to secure the mirror adequately, failing to warn, and failing to cordon off the area. Hawkins argued that the waiver did not apply because the injury was the result of a danger that was beyond the ordinary risks accompanying the use of a fitness club membership.
So the question was whether the broadly worded waiver (see the boldly highlighted phrases above) protected the club; or whether the waiver protected against only the ordinary risks accompanying a health club. The reader should click here to read the entire case.
The court ruled that there was an issue of fact as to whether the waiver applied to a falling mirror, rejected summary judgment, and sent the case back to trial. This case contains some similarities to New Jersey case, Walters v. YMCA, discussed in a post earlier this year.