The Importance of Well-Written Waivers

Running to a Standstill. by Herkie on flickr.comProtect your facility with unambiguous waivers, and make good decisions on the fitness floor to minimize risk.

Ning Yan fell while running on a treadmill, and died from his injuries. A representative of his estate sued, alleging that the fitness center was negligent in placing the treadmill too close to a wall. The estate contended that the treadmill belt threw Yan off the rear of the treadmill into a wall that was only 2 ½ feet from the treadmill. The defendant, Vital Power Fitness Center, argued that Yan became ill and fell down, hitting his head on the floor. No one actually saw the incident take place.

The plaintiff filed a suit alleging ordinary negligence and wrongful death, and later amended the complaint to include gross negligence, as well. The defendant filed a motion for summary judgment, contending that Yan had singed a release at the top of the sign-in sheet that precluded any claims of ordinary negligence against the defendant. The trial court dismissed the wrongful death and gross negligence claims, and granted summary judgment based on the waiver of liability (Junyi Xu v. Gay d/b/a Vital Power Fitness Center, Mich. App. LEXIS 1505, 2003).

Dangerous, but not reckless
As evidence of gross negligence, the plaintiff offered the testimony of an expert witness who declared that treadmills should be placed at least 5 feet from a wall, and added that the “defendant’s lack of knowledge regarding safety standards for a fitness club” were “incredulous.” Upon appeal, however, the Court of Appeals of Michigan upheld the dismissal of the gross negligence allegations, holding that the defendant’s conduct was not so reckless as to demonstrate a substantial lack of concern for whether an injury occurred.

Releases must be unambiguous
The plaintiff argued that the trial court erred in dismissing the ordinary negligence claim because the language on the sign-in sheet did not constitute a release of liability. The appellate court agreed. The language on the sign-in sheet was this: “I also understand that Vital Power Fitness Center assumes no responsibility for any injuries and or sicknesses incurred to me or any accompanying minor person as a result of entering the premises and/or using any of the facilities.”

The critical issue was whether the release was unambiguous. The court compared the waiver to one determined to be unambiguous in another Michigan case (Skotak v. Vic Tanny Int’l. Inc., 513 N.W.2d 428), which read, “Member expressly agrees that Seller shall not be liable for any damages arising from personal injuries sustained by the member … on or about the premises of the said gymnasiums or as a result of their using the facilities and the equipment therein. … Member accepts full responsibility of any such injuries or damages which may occur to the member … on or about the premises. … Member assumes full responsibility for any injuries, damages or losses which may occur to Member … and forever release and discharge Seller and all associated gymnasiums, their owners, employees and agents from any and all claims [and/or] damages.”

The court stated that, with this case (and others) as guidance, it cannot read the purported release as releasing the fitness center from liability for its own negligence. The language neither informs readers that they are solely responsible for injuries incurred and that they waive the defendant’s liability by relinquishing the right to sue, nor does it contain words such as “waiver,” “disclaim,” or similar words that would clearly indicate the intent. The court went on to state that, at a minimum, a release should explicitly inform the reader regarding the effect of a release. The court concluded that the trial court had erred in granting summary judgment, and remanded the case to the trial court for trial.

Risk-management principles
1. Fitness center management should stay informed of industry standards regarding the use and placement of equipment. This suit might never have been filed had the treadmill been placed farther from the wall.

2. In most states, waivers can protect a facility and its personnel from liability for their own negligence — provided the waiver is well-written and properly administered. As evidenced in this case, poorly prepared agreements can produce a false sense of security. Be certain that your waiver is effective.

3. Do not copy someone else’s waiver. You might be tempted to use the waiver presented above. This waiver was enforced in Michigan (a state with lenient requirements for the enforcement of waivers), but would not be enforced by courts in many states because it does not refer specifically to the “negligence of the club.”

By Doyice J. Cotten
originally published September 2008, Fitness Management Magazine
Dr. Doyice J. Cotten is professor emeritus in sport management at Georgia Southern University, and has a consulting business, Sport Risk Consulting. He is the coauthor of Waivers and Releases of Liability (6th ed.), which is a complete and up-to-date source of 1) state waiver laws, 2) rulings regarding waivers for adults and minors, 3) guidelines on how to write waivers (including examples) and 4) a full explanation (and examples) of a Participant Agreement. The book is available here.