By Doyice Cotten
This post is a little different from my usual post – not so much about the results of a waiver case as about provider responsibility. I hope this post impresses upon providers of sport, recreation, and fitness activities the idea that having a waiver might reduce the financial risk of the organization, but does not relieve the provider of the responsibility to make every effort to protect the participant against unnecessary risk of injury.
In a 2016 Ohio case, a minor, Michael Cantu, suffered a spinal injury resulting in quadriplegia. While visiting Flytz Gymnastics, Inc. with friends, he attempted to use a spring board to go over a vault and landed head first in the foam block pit. His mother, who took the group to the gym, had signed a liability waiver.
Subsequently, they filed suit against Flytz alleging negligence, recklessness, and willful/wanton conduct, as well as several other charges (Cantu v. Flytz Gymnastics, 2016 Ohio Misc. LEXIS 12186).
Consequences of Risk Management Failure
There is risk of injury in any sport, recreation, or fitness enterprise. This case, however, illustrates one of the worst types of injury. Most providers would feel bad if a client broke his leg or sustained a concussion. But imagine how you would feel if one of your clients lost the use of his arms and his legs.
Now imagine how you would feel if you realize that you could easily have prevented the injury. Most sport, recreation, and fitness enterprises do not involve a considerable risk of quadriplegia or death (e.g., bowling, softball, dance, volleyball, golf, swimming, health clubs); however, some enterprises do involve a considerable risk of these as well as other major injuries (e.g., football, rugby, trampoline parks, rock climbing, hockey, skiing, extreme sports, and even some cheerleading stunts).
Function of a Liability Waiver
Most sport, recreation, and fitness enterprises utilize a waiver of liability to help provide financial protection for the business enterprise. In most states such waivers can be effective provided they are well-written and do not conflict with state laws and public policy. Waivers are designed to protect the enterprise from liability when the injury is a result of an inherent risk or the ordinary negligence of the enterprise or its employees.
In the Cantu case, an example of an inherent risk might be when a participant vaults into a foam pit and fails to land correctly (feet first). Ordinary negligence might exist if the vaulting pit did not have enough foam blocks in it. The function of the waiver would be to protect Flytz from liability in such a case.
Flytz required that Cantu’s mother sign the waiver on behalf of her minor son (Ohio is a state that enforces Parental Waivers). The waiver was well-written and protected Flytz from liability for any injury resulting from the inherent risks of the activity as well as from injury caused by the ordinary negligence of Flytz. The waiver protected and summary judgment in favor of Flytz was granted on that charge.
So far, so good! But, Cantu’s suit alleges negligence, recklessness, and willful/wanton conduct. The waiver does not provide for protection against recklessness or willful/wanton conduct. In fact, in most states, a waiver will not protect a provider from liability for injuries resulting from gross negligence, recklessness, or willful/wanton conduct.
In addressing the claim of recklessness and willful/wanton conduct, the court looked at the evidence to determine if the claim constituted a genuine issue of material fact. The expert witness statements indicated that Flytz violated a number of safety regulations including:
- failing to ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity
- failing to provide adequate supervision of the open gym participants.
- failing to instruct Michael Cantu on how to land safely in a loose foam landing pit.
- failing to provide a reasonably safe physical environment for the intended gymnastics activity.
- providing a dangerous foam pit.
The expert witness summarized Flytz’s actions as “grossly inadequate,” reckless, and exhibiting “willful/wanton” disregard for caution.
In light of the evidence, the court determined that genuine issues of material fact existed regarding the recklessness and willful/wanton charges. The court denied summary judgment to the defendant, Flytz, and sent the issue to trial to determine if Flytz’s conduct was reckless and willful/wanton. In that case, Flytz will probably experience both massive negative publicity and great expense since the award in the case of a quadriplegic victim is likely to far exceed the liability insurance of the company.
Duty of the Activity Provider
The waiver can protect against ordinary negligence, but not against more extreme violations of care. The activity provider has a legal duty to provide a safe environment, make certain the participant is qualified to participate, and provide adequate supervision of the activity. The provider must not assume the attitude that the entity is fully protected by the waiver – thus, there is no need to spend money on risk management or be concerned about participant safety. Remember, no waiver is “foolproof” and failure to protect is always a possibility. Further, the provider has a moral duty to see to the safety of participants. No one wants to see a client badly injured – and injuries (and suits) are bad for business.
Some providers do not realize that even with a waiver, 1) a lawsuit can be costly in both money and time spent dealing with the issue; 2) publicity will likely hurt business; and 3) the legal proceedings can often drag on for four or five years or more. (Note: Michael Cantu was injured in August, 2011. This appeal was issued in 2016, and this ruling is not the end. If the parties have not agreed to a settlement, subsequent legal action is required to determine if Flytz’s actions exceeded ordinary negligence.) Much mental energy has been wasted and a life has been ruined — when it all could have been avoided by some basic risk management by Flytz.
Risk Management Take-Away
So if you are a sport, recreation, or fitness provider:
- learn all you can about risk management;
- apply what you learn to keeping your clients safe;
- provide a safe facility (quality equipment, regular inspections);
- make certain the client is physically capable of the activity (in terms of fitness, skill, and knowledge);
- provide instruction when needed;
- provide trained supervisors (and supervise your supervisors); and
- establish safety rules as appropriate, inform clients of the rules, and enforce the rules.
Photo Credit: Thanks to Nan Palmero via Flickr.