The Cohen v. Five Brooks Stable court (2008 Cal. App. LEXIs 222) gave some sound advice to writers of waivers. While acknowledging that California courts hold releases of liability to a high standard of clarity, the court emphasized that “An effective release is hard to draft only if the party for whom it is prepared desires to hide the ball, which is what the law is designed to prevent. . . . A release that forthrightly makes clear to a person untrained in the law that the releasor gives up any claim against the releasee for the latter’s own negligence .
Minnesota joined the list of states that have enforced a liability waiver which was signed by a parent on behalf of a minor child (Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299). Moore signed a waiver for her son releasing the Minnesota Baseball Instructional School from liability arising from injury or loss caused by negligence or otherwise while participating in such activity or while upon the premises.
The minor suffered the loss of vision in one eye while throwing woodchips during a free period.
Keeping waivers crystal clear can protect you from lawsuits.
Some waivers are upheld when challenged in a court of law, while others are not. Why do some waivers pass and some fail? All waivers must meet the standard of being clear and unambiguous, and the most frequent reason for failure is that the waiver was ambiguous and poorly written. The following four cases illustrate two well-written waivers and two poorly written waivers.
You can do many things to reduce the risk of a lawsuit in your fitness center. Here are some important first steps.
Many fitness center operators are fearful of being sued. And those who aren’t, should be! Even if you use a waiver and have insurance, a lawsuit is bad news. You have a big headache that will drain your attention and your peace-of-mind. In addition, the process of defending a lawsuit usually lasts for several years. Even if you eventually win, you have had the worry and, often, an abundance of bad publicity. Financially, your insurance may not cover the claim, and your rates will probably go up. All in all, it is better to avoid a suit in the first place. You can do many things to reduce the risk of an injury and a subsequent lawsuit in your fitness center.
What is a waiver and how is it used? Do they work? Why do they fail? How do I write an effective waiver? Get the Answers! Liability waivers, contrary to misconceptions of providers in the past, can be effective in protecting providers from liability for injuries resulting from the negligence of the provider. Waivers are inexpensive to obtain, easy to administer and store, and can help protect providers from the consequences of their own mistakes.
How do I control risk in my sport related business? Get the facts about Risk Management. Risk management is an on-going process by which a business or corporate entity attempts to control the programmatic and financial risks in order to reduce costs, enable desirable programming, and provide financial stability.
You should be able to identify the risks facing your facility. The question is, what do you do about a risk once it is identified? Whether it be a property exposure, liability for negligence or otherwise, or regarding business operations, management must determine the extent of the risk by examining the following: 1) its potential severity (possible impact on the corporation functioning and possible seriousness of a resulting injury), and 2) the likelihood of the risk or injury occurring. After determining the extent of the risk, four control approaches are available.
Your certification requirements should go beyond taking an employee’s word for it. Research the certifying organization and make a paper trail to help avoid client injury and litigation.
Ask, “Are the actions of my personal trainers going to land me in a lawsuit?” Client Anne Capati thought the personal trainer she hired at Crunch Gym in New York, N.Y., was an expert. However, she suffered a brain hemorrhage and subsequently died as a result of his recommendations. Her husband, Doug Hanson, filed a lawsuit that has created a stir in the industry.
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Dr. Doyice J. Cotten
Sport Risk Consulting