By Doyice Cotten

A man and his wife joined a gym, signing a total of 3 waivers of liability. He began working with a personal trainer and on the day he suffered a stroke, he took a food supplement (R.A.G.E.), which he had bought elsewhere, and did a workout with the trainer. He sued the gym alleging the workout was too vigorous and sued the drug manufacturer.

The first document he signed was a membership agreement with an exculpatory agreement within it:

“WAIVER AND RELEASE LIABILITY”:

The Club urges you and all members to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise class. All exercises, … shall be at the member’s sole risk. Member understands that the agreement to use, or selection of exercise programs, methods and types of equipment shall be member’s entire responsibility, and the Club shall not be liable to member for any claims, demands, injuries, damages, or actions arising due to injury to member’s person or property arising out of or in connection with the use by member of the services, facilities, and premises of the Club. Member hereby holds the Club, its officers, owners, agents and employees harmless from all claims which may be brought against them by member or on member’s behalf for any such injuries or claims.

The second agreement was a Fitness Assessment agreement containing the following waiver provision:

MEMBERS ACKNOWLEDGMENT, ASSUMPTION OF RISK AND

FULL RELEASE FROM LIABILITY OF NONSTOP FITNESS:

Member acknowledges that the fitness assessment hereunder includes participation in the strenuous physical activities, including but not limited to, aerobics dance, weight training, stationary bicycling, various aerobic conditioning machines and various nutritional programs offered by Nonstop Fitness. Member agrees to assume all risks and responsibility involved with participation in the physical activities. Member affirms that member is in good physical condition and does not suffer from any disability that would prevent or limit participation in physical activities. Member acknowledges that participation will be physically and mentally challenging, and member agrees that it is the responsibility of the member to seek competent medical or other professional advice regarding any concerns involved with the ability of member to take part in the Nonstop Fitness physical activities. Member agrees to assume any and all risks and take responsibility for not exceeding his/her own physical limits.

He also signed a Personal Training agreement containing the following provision:

BUYER AGREES TO ASSUME ALL RISK AND RESPONSIBILITY INVOLVED WITH PARTICIPATION IN THE PHYSICAL ACTIVITIES. … BUYER, … AGREES TO FULLY RELEASE TO NONSTOP FITNESS, INC. (AS WELL AS ANY OF ITS OWNERS, EMPLOYEES, OR OTHER AUTHORIZED AGENTS, INCLUDING INDEPENDENT CONTRACTORS) FROM ANY AND ALL LIABILITY, CLAIMS AND OR LITIGATION ACTIONS THAT BUYER MAY HAVE FOR INJURIES, DISABILITY OR DEATH OR OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO THE PERSONAL TRAINING/NUTRITIONAL PROGRAMS AND THE PHYSICAL ACTIVITIES.

Traditionally, Georgia courts have tended to enforce most liability waivers. Georgia courts do not require specific language, such as requiring specific reference to the “negligence” of the provider. Note the underlined exculpatory language in the waivers. The courts interpret “any and all” claims or liability to include negligence. Courts in many states would interpret “any and all” to refer to inherent risks – not negligence. Herron  claimed the agreements were ambiguous. The court disagreed, stating they were clear and express waivers of liability.  The court ruled the waivers were enforceable against ordinary negligence. In addition, Herron claimed the waivers did not bar claims for gross negligence. The court agreed.

The claim against the supplement manufacturer was complicated by the fact the company had been purchased by another company. The appellate court reversed the trial court and refused to grant summary judgment to the manufacturer. Nonstop Fitness would have had more problems had they, or the personal trainer, sold Herron the food supplement.