By Doyice Cotten
It is well-established that the common law imposes a duty of care on business owners to maintain safe premises for their business invitees (clients, customers, or potential clients). Visitors to a place of business generally fall into one of three categories and in most states, the duty owed the visitor depends upon the “category” into which the visitor falls.
The three categories are, first, the invitee — one who has an express or implied invitation to enter the business (e.g., a health club patron, a grocery store customer, or a country club member); second, the licensee — one with permission to enter the premises for his or her own purpose – not for the benefit of the business or its owner (e.g., one who is allowed to hunt or fish on the property, social guests); and third, the Trespasser – one who intentionally and without consent enters another’s property (e.g., a burglar, a protester, one who sneaks onto a golf course to play a few holes).
The business owner owes the invitee the highest duty; that is, a duty to exercise reasonable care to maintain the premises in a reasonably safe condition, to inspect for and warn of unsafe conditions, and to exercise due care to protect invitees from conditions that can result in injury. The duty owed to the licensee is similar to that of an invitee except there is no duty to inspect for unsafe conditions. In contrast, the duty owed the trespasser is significantly less. The business owner owes only the duty to not purposely injure the trespasser and to avoid making the premises more dangerous than the trespasser would normally expect (i.e., setting a trap).
Keep in mind, these are the categories and general rules in most states, but they may vary somewhat from state to state. A number of states have abolished the category of visitor concept in favor of having the same rule for all visitors: the business owner owes a duty to act as a reasonable person in maintaining the property in a reasonably safe condition under the circumstances for all visitors. Regardless of the system in your state, most parties entering your premises will be invitees – and they are owed the duty of reasonable care.
A Business Unrelated to Sport, Recreation, or Fitness
Let’s look at the duty owed customers in a grocery store or a department store. Does the grocery store have a duty to clean up spills? To cordon off wet, slippery surfaces? To not leave mops or buckets for customers to trip over? Does the department store have a duty to be certain racks of clothes will not fall over on customers? To see that carpet tears are mended to prevent tripping? To see that stairway non-slip treads are not worn and slippery? Injuries resulting from each of these problems can leave a grocery store or department store liable. But the important question for sport, recreation, or fitness providers should be: “Will our liability waiver protect the sport, recreation, or fitness business from liability for injuries resulting from these same non-sport-related hazards?” Does the waiver protect against all hazards in the business (e.g., slip and falls, bleacher collapse), or does it only protect the provider from liability for injuries directly related to the sport, recreation, or fitness activity?
Liability in the Sport, Recreation, or Fitness Setting
Whether the waiver will protect when the hazard is not sport-related depends upon at least two factors. The first is the waiver itself. Is it written to be inclusive of non-sport-related hazards? Many waivers are general in nature and actually make mention of these types of hazards. Others are very specific and seem to be solely concerned with sport-related injuries. They make no mention of non-sport-related hazards. The second factor is the state in which the injury occurs. Courts in most states seem to rely on the waiver language and the intent of the waiver. In those states, the answer to the title question is “Usually” — especially if it is a broadly written waiver. Courts in a few states, however, have proven reluctant to enforce either general or specific waivers when the injury was not sport-related. The focus in this post is to examine some of these exceptions.
In 2014, a New Jersey appellate court examined a health club case in which the plaintiff was injured on stairs leading away from the pool area; the slip-resistant surface on the bottom step was worn away (Walters v. YMCA). Walters had signed a waiver protecting the health club from personal injuries “while on any YMCA premises or as a result of a YMCA sported activities [sic].” The injury did not occur while Walters was in the pool or while entering or exiting the pool. Since the incident could have occurred in any business setting, the plaintiff argued the defendant should be held liable pursuant to the common law duty all business owners owe to invitees. Thus the court was called on to answer the question “whether an exculpatory clause that insulates a physical fitness club … from liability ‘for any personal injuries … while on any … premises’ is enforceable when the accident … was not caused by or related to an inherently risky physical fitness activity.” The court said that this was a “garden variety slip and fall case.” The court expressed the belief that “Given the expansive scope of the exculpatory clause here, we hold that if applied literally, it would eviscerate the common law duty of care owed by defendant to its invitees, regardless of the nature of the business activity involved.” As such, the court ruled that enforcement of the waiver would adversely affect the public interest and would violate public policy.
In an earlier case (Sweat v. Big Time Auto Racing, Inc., 2004), the California court went beyond a literal reading of the language in the waiver which suggested that the release was intended to “cover negligent acts anywhere, whether in the restricted area or not.” The court felt this clouded the purpose of the release and used extrinsic evidence to interpret the scope of the waiver. The court found the purpose of the waiver was to require a fan to expressly assume the risk of injury associated with being in close proximity to the dangerous activity of automobile racing; it ruled that a collapsing bleacher bore no relationship to the purpose of the agreement – thus the waiver failed to protect Big Time Auto Racing.
Two Illinois courts (Simpson v. Byron Dragway, Inc., 1991; Hawkins v. Capital Fitness, Inc., 2015) have stated that even broad waivers do not encompass all accidents without limit. In Simpson, the court concluded that the danger of a deer running onto a racetrack was not the type of risk that is intended by racetrack waivers. In the Hawkins case, a mirror fell from the wall injuring a patron in a health club. In the waiver, Hawkins released Capital Fitness from “any and all claims or causes of action” and “in any way related to member’s presence at or use of this facility.” The court held that reasonable minds could differ as to whether this constituted an ordinary risk of health club participation and did not grant summary judgment to Capital Fitness.
The Walters, Sweat, and Hawkins cases involved broadly worded waivers; the following cases involved more narrowly-worded waivers. In an Arkansas case (ver Weire v. Styles, 2013), a woman went to a raceway and signed a waiver permitting entrance to restricted areas. Later, ver Weire was injured in the bleachers where a loose plank caused her to fall and suffer injury. The plaintiff argued that the injury was completely unrelated to the unique and obvious dangers associated with automobile racing; that ver Weire was a business invitee, and as such, was owed the duty to maintain the premises in a reasonably safe condition. The court ruled that under these circumstances, the waiver was inapplicable and did not protect the defendant. It was of interest that the court failed to note that the waiver language specified protection for the defendant “… while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.” This was not a broad waiver as was the case in Walters. Likewise, in a New York auto racing case (Stevens v. Payne, 2015), the waiver was specific to the “risks rationally associated with the dangerous nature of automobile racing;” therefore, the waiver did not apply to faulty bleachers.
Sport, recreation, and fitness providers wanting protection from non-sport-related injuries should see that the waiver includes reference to such areas as restrooms, sidewalks, parking lots. Also, language such as “while on the premises” can be utilized to broaden the scope of the waiver. But regardless of the language, providers need to realize that while many or most jurisdictions seem to enforce broadly written waivers, courts in some states will not enforce even the broadly worded waivers. For this reason, providers should remember that the business owner owes a duty to act as a reasonable person in maintaining the property in a reasonably safe condition under the circumstances for all visitors.
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