By Doyice Cotten
Carol McCoy joined Planet Fitness (PF) and signed a liability waiver intended to relieve PF for liability for its own negligence. The waiver was included as part of a membership agreement that contained a banner containing the capitalized and bolded letters “RELEASE OF LIABILITY” and “ASSUMPTION OF RISK.”
The second paragraph of the waiver provision reads:
I understand that I am not obligated to sign this agreement and should not do so if there are any unfilled blanks. I understand my right of cancellation and the billing and refund policies. I understand my release of liability, assumption of risk and agreement to indemnify, defend and hold harmless and I have been given the opportunity to review and ask questions related to my use of facilities … and other equipment. … I agree to comply with Planet Fitness’ membership policies and club rules. … Planet fitness may, in its sole discretion, modify any policy or club rule at any time and from time to time without advance notice. Planet Fitness reserves the right, in its sole discretion, to refund the pro-rated cost of unused services. … By signing below, I acknowledge and agree to all of the terms contained on the front and back of this agreement.
McCoy’s name appears immediately below this paragraph. In addition, the second page of the agreement reads “PLEASE READ AND UNDERSTAND THIS AGREEMENT BEFORE SIGNING” in bold capitalized letters.
At a later date, McCoy fell from a stair stepper machine and alleged that the emergency stop button failed to stop the machine, causing her injury. She sued claiming PF was negligent and failed to provide a safe product. PF’s motion for summary judgment based on the waiver was denied by the trial court and that denial is the basis of this appeal to the appellate court (McCoy v. PFWA Lacey, LLC, 2021).
The Washington Supreme Court has recognized the right of parties “ ‘expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.’ ” Another Washington court has ruled that a liability waiver is generally “enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others [gross negligence], or (3) it is inconspicuous.” The first two factors were not at issue here. The sole issue was whether the waiver was “ ‘so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.’ ”
Factors in Determining the Conspicuousness of a Waiver
The court looked at six factors in deciding whether the liability waiver provision was conspicuous including:
(1) whether the waiver provision is set apart or hidden within other provisions,
(2) whether the heading or caption of the provision is clear,
(3) whether the waiver provision is set off in capital letters or in bold type,
(4) whether there is a signature line below the waiver provision,
(5) what the language says above the signature line, and
(6) whether it is clear that the signature is related to the waiver provision.
First, the court determined that the waiver was set apart by a banner and bold letter identification. It was not hidden.
Next, the header, “RELEASE OF LIABILITY,” “ASSUMPTION OF RISK,” “CLUB RULES,” and “BUYER’S NOTICE & RIGHT TO CANCEL,” clearly indicated that the document pertained to a release of liability.
Third, the court noted that the waiver language was not emphasized in the document. The term release of liability did not appear in bold or capital letters throughout the document. This factor did not support the conspicuousness of the document.
The fourth factor regards where the signature line appears in relation to the waiver language. The court noted that it was not located immediately following the waiver language – thus, was not in support of conspicuousness of the waiver.
The fifth and sixth factors, whether the signature relates to the waiver provision, was determined to support conspicuousness because it was clearly in the area set off by the big banner and it said the signature relates to the “all of the terms contained” in the agreement.
Regarding “opportunity to examine the waiver,” McCoy admits that she did not read the agreement. Regardless failure to read does not relieve her of being bound to it by her signature. Washington courts have ruled that “Where a party has signed a contract without reading it, that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract.” After signing and saying she had not read it, she seemed to be satisfied when told that a copy would be mailed to her. The court also said “Although McCoy asserts that she was not given the opportunity to read the membership agreement, there is no indication that she could not have read the contract either before or after she signed it if she had asked.”
The court added that McCoy sought out the membership and there is no evidence that she was coerced. The court then ruled the waiver was conspicuous as a matter of law. McCoy has not shown that there is a genuine issue of material fact regarding her opportunity to read the membership agreement. The court added that “In any case, even if she felt rushed to sign the document, the waiver language was, as a matter of law, conspicuous enough for her to notice it.”
The court ruled the liability waiver was conspicuous and reversed the trial court denial of summary judgment.
Risk Management Take-away
One should look at the conspicuousness of the waiver in use. This case deals with Washington law, but the criteria used here are helpful regardless of state.
Photo Credit: thanks to Charity Davenport via Flickr.