Hang onto those Waivers!

This article by Doyice Cotten was originally published in Fitness Management. It has been updated (in red) and presents the provider with some valuable information regarding waivers.

Jody Corso was injured while performing an aerobic exercise under the direction of an aerobics instructor.  She fell while using a yoga ball and when she quickly regained her feet, she injured herself.  She filed suit against the United States Surgical Corporation (owner of the fitness center provided for the use of its employees), claiming the corporation, its agents, servants, and employees were negligent in allowing the gymnasium floor to become dust, unclean, and slippery; in failing to remedy the dangerous and defective condition; in failing to erect proper safeguards, signs, or warnings; in failing to inspect the premises; and in maintaining the gym in these conditions.  US Surgical asserted two defenses: 1) contributory negligence on the part of the plaintiff and 2) that the claim is barred by a waiver of liability signed by the plaintiff when she joined the center. US Surgical, however, faced a problem with this defense.  The corporation was unable to produce a waiver signed by the plaintiff. Corso v. United States Surgical Corporation, 2005 Conn. Super. LEXIS 1373

The plaintiff argued that the failure to produce a waiver signed by the plaintiff created a genuine issue of fact; however, the court stated that Connecticut law has long recognized that a party may use secondary evidence to establish the existence and terms of a written agreement that no longer exists.  Subsequently, the defendant corporation submitted an affidavit of the manger of the health and wellness programs.  In the affidavit she stated that any employee who wishes to become a member of the fitness center is provided with an application packet.  They must read the information packet, complete a health screening questionnaire, have a blood pressure reading, read and sign a participation consent form, pay the membership fee, return all signed forms, go through a “fitness initial” with the staff, and have a cardkey  coded for entry into the center.  A member of the fitness center would review the provisions of the “Agreement and Release of Liability” and the employee would then sign the agreement.  The manager emphasized that the employee must sign the waiver prior to entering the facility and no exceptions to this procedure were allowed.

The language of the waiver stated, in part, that “I do hereby waive … all others from any and all responsibilities or liability for injuries or damages resulting from my participation in any activities or my use of equipment … in any activities at said facility.  I do also hereby release … others from any responsibility … including those caused by the negligent act or omission of any of those mentioned ….”

The appellate court ruled that there is no evidence controverting the fact that the plaintiff signed the release nor is there evidence controverting the terms of the release. The court then determined that the waiver was not ambiguous and that it effectively released US Surgical from liability for the injury to Corso.

Risk Management Principles

1)      It is well-established that liability waivers can be used to protect a service provider from liability for injuries resulting from the ordinary negligence of the service provider.  Service providers would be wise to utilize a properly-drafted waiver to add to the financial security of the business.

2)      Service providers should develop and maintain a system that provides for safe storage and maintenance of waivers as well as all important documents and records.

a)      The system should provide for easy retrieval of such documents and should provide for long-term storage.

b)      Keep all waivers – not just those signed by parties that you know were injured.

c)      Providers ask how long such documents should be kept.  When this article was originally published in Fitness Management I recommended keeping the waiver until the statute of limitations has expired. A lawyer friend pointed out that a safer policy would be to keep all waivers “forever.” That is my current recommendation. The immediate answer is that “I have a storage problem. I do not have room to store thousands of waivers.” A solution to the storage dilemma is to periodically copy all waivers more than a couple of years old onto a DVD or CD. Make two copies of the disk and keep one off-site.

3)      Do not operate on a hit or miss approach.  US Surgical was protected because they had firm, documented, no-exception policies regarding the requirement of patrons to sign the waiver.  All providers need such firm policies so that a waiver is likely to be enforced even if it cannot be supplied.

Photo Credit: U.S. Army Environmental Command (http://www.flickr.com/photos/armyenvironmental/4440793811/sizes/l/)