By Doyice Cotten
A strong waiver written specifically for a particular sport business can help to protect the business against liability for negligence resulting in injuries. In Macias v. Naperville Gymnastics Club (2015), Kamil Macias paid ten dollars and signed a liability waiver in order to use the facility. While at the club, Macias observed clients landing in a foam jumping pit; he tried it and suffered a broken neck when he landed head first into the foam. He filed suit alleging negligence in failing to properly supervise, train participants, and warn participants of the dangers in the open gym.
On the entrance door to the gym, there was a sign which gave the Rules of the Gym. They included:
- “Walk around all pits and trampolines,”
- “Do not play on any equipment without proper supervision,”
- “Do not do any gymnastics without proper supervision,”
In addition, inside the gym was a sign entitled “Loose foam pit rules.” Included were the rules:
- “Look before you leap,”
- “No diving or belly flops,”
- “Land on feet, bottom or back only.”
The first clause of the release (typed in capital letters) states:
“BY SIGNING THIS DOCUMENT YOU ACKNOWLEDGE THAT UNSUPERVISED USE OF ANY AREA OF FACILITY IS STRICTLY PROHIBITED AND COMPLETELY AT THE RISK OF THE PARTICIPANT AND THAT THE RULES [OF] EACH AREA BEING UTILIZED ARE UNDERSTOOD PRIOR TO PARTICIPATION!”
Plaintiff asserted that the clause was ambiguous as to whether supervision and a full understanding of the rules of the Club is a condition precedent to releasing defendant from liability. The court said that it would be ambiguous if taken alone, but was unambiguous when read with the remainder of the agreement.
The release contains a “Covenant Not to Sue for Injury or Damages,” which stated:
“Notice: This is a legally binding agreement. By signing this agreement, you waive your right to bring a court action to recover compensation or to obtain any other remedy for any injury to yourself *** however caused arising out of use of the facilities of [the Club].
I hereby acknowledge and agree that the sport of gymnastics and the use of the accompanying equipment has INHERENT RISKS. I have full knowledge of the nature and extent of all of the risks inherent in gymnastics and the use of the facilities of the gym, including but not limited to:
- Injuries resulting from landing on the landing surfaces; and
- Injuries to bones, joints, tendons, or death.
The section of the release agreement entitled “Release Indemnification Liquidation Damages and Agreement to Arbitrate” stated:
“In consideration of my use of the GYM, I the undersigned user, agree to release on behalf of myself *** [the Club] *** including but not limited to a claim of NEGLIGENCE.”
In addition, immediately preceding plaintiff’s signature was the statement
“the undersigned recognize[s] the dangers inherent with climbing and jumping activities,” and the undersigned is “assuming the hazard of this risk upon myself because I wish to participate. I realize that I am subject to injury from this activity and that no form of pre-planning can remove all of the danger to which I am exposing myself.”
The court summarized by saying the intent of the waiver is clear; it covers the activity of the foam pit; it included injuries “resulting from landing on the landing surfaces” (i.e. the “foam pit”); it released the Club from negligence; and “the dangers inherent with climbing and jumping activities.”
A strong waiver that applies specifically to the facility or activity of concern is a necessity. For the protection you need, don’t rely on a form waiver copied from the Internet or some other establishment. Have an expert write a waiver specifically for your business. In this case, the signage also played an important role in the granting of summary judgment.