By Mary Cotten
The question of the effectiveness of a waiver signed by a non-reader or a non-English reader is a concern for sport, recreation, and fitness providers. Courts generally hold that a person who signs a contract is bound by it whether they read it or not.
This was one of the issues before the U. S. District Court in a 2016 New Jersey case, Kang v. LA Fitness. Kang, who could not read or understand English, joined LA Fitness and signed a membership contract which contained a “RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.” Her daughter was present to translate for her. Kang was later injured on a chin/dip assist pull up machine and sued, alleging negligence. LA Fitness moved for summary judgment on the basis of the waiver signed by Kang.
Kang argued that there was no “mutual assent” since she could not speak English. The court said that Kang’s “inability to speak English does not bar her from becoming contractually bound.” They added that New Jersey courts “have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect.” The fact that the staff may not have explained the waiver terms to her or her daughter did not preclude enforcement.
Kang’s other arguments for not enforcing the waiver were also unpersuasive. The court upheld the waiver and granted the motion for summary judgment to LA Fitness.
Risk Management takeaway:
A waiver is generally enforced, even if the signer cannot read or has not read it. However, it would be good practice when presenting the waiver to have staff explain its purpose to a non-reader or, if possible, have someone translate for a non-speaker of English what the patron is signing. This would be good public relations and might prevent a lawsuit in case of injury.
Photo Credit: Thanks to Stephanie Young Merzel via Flickr.