By Doyice Cotten
A waiver of liability is a contract intended to relieve a service provider from liability for injuries resulting from the negligence of the provider. Such waivers are enforceable in at least 45 states providing they meet certain requisites. A major requirement in all states is that the waiver must be clear and unambiguous to be enforceable. Some examples of requirements regarding language include 1) A clear and unambiguous contract must be enforced… 2) Language must be unambiguous, explicit, unequivocal … and 3) The intentions of the parties must be expressed in clear and unambiguous terms.
Language in a waiver can be ambiguous for a number of reasons – one of which is conflicting language within the waiver. In Fresnedo v. Porky’s Gym III Inc. (2019), a recent Florida case, ambiguity was one of the issues. It was argued that it was unclear as to whether or not the waiver applied to a injuries suffered in a physical altercation between a member and an aggressive visitor.
Pertinent paragraphs in the waiver follow:
- You understand that the use of the Clubs’ facilities and [e]quipment tests a person’s physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity. You are aware of and accept these risks. You also understand and agree that it is your sole responsibility to determine whether you are sufficiently fit and/or healthy enough to safely use the equipment and/or facilities of any of the Clubs. You affirm that you will be sufficiently fit and physically trained to use the equipment of the Clubs you choose to use. [Emphasis added.]
- In consideration of your membership with any of the Clubs, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, officers, directors, and agents, from any claim (of any nature whatsoever) that you may have, now or in the future, for any injuries you incur while you are on the premises occupied by any of the Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries, and any other illness, soreness or injury however caused, occurring during or after your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs. [Emphasis added.]
- Additionally, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, Officers, directors, and agents, from any claims (of any nature whatsoever) that you may have, now or in the future, for any damage to any of your property incurred while you are on the premises occupied by any of the Clubs, whether caused by the active or passive negligence of any of the Clubs or otherwise.
The fourth paragraph reads:
- YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS OR OTHERWISE WHILE YOU ARE ON THE PREMISES OCCUPIED BY ANY OF THE CLUBS. [Emphasis added.]
Fresnedo, the plaintiff, argued that the highlighted language in the first two paragraphs clearly indicates that the waiver applies to injuries incurred while using the facilities and equipment for exercise. Porky’s argued that the language of the fourth paragraph was abundantly clear that the plaintiff assumed full responsibility for any risk of injury.
Fresnedo argued that if paragraph four “is so plain, clear, unambiguous and all-encompassing, why would paragraphs One and Two be necessary at all? ” In fact, Frenedo had declared:
[My] understanding of these forms was that I was giving up my right to pursue claims against Porky’s Gym in the event that I was injured while performing the activity that I came to the gym to do, which was work out. . . . [B]ecause of the specificity of the release, it was my understanding that I was merely giving up the right to purs[u]e any claims against the facility if I was injured as a result of my work out.
The court agreed with the plaintiff that when paragraphs one, two, and four are read together, one could reasonably expect that the injury referred to in paragraph four referred back to the facility and equipment risks discussed in paragraphs one and two. Consequently, the court held that reading the paragraphs of the waiver and release form together and in context, a dispute remains as to the intention to be relieved of all liability. It held that the intent of the waiver is not clear and unequivocal. The court reversed the summary judgment ruling of the trial court, denied enforcement of the waiver, and remanded the case for trial.
Risk Management Take-away
Waiver language can be tricky; one must read it carefully when searching for ambiguities. Conflicting language can sometimes be difficult to spot.
Photo Credit: Thanks to ThoroughlyReviewed via Flickr.