You Be the Judge – Test your Liability Knowledge

By Doyice Cotten

Rac-photos-057a1-300x241.jpgOccasionally, we offer the reader an opportunity to test his or her liability judgment. Take a few minutes and check this waiver and see if you think it protected the defendant health club from liability for negligence (Hoffner v. Fitness Xpress, 2016).

Situation

Charlotte Hoffner had been a member of Fitness Xpress, a health club in Michigan, for about two weeks when she slipped and fell on ice on the sidewalk in front of the club. Hoffner claimed she saw “glare ice” on the sidewalk as she approached in her vehicle. She thought she could safely walk across it since she was wearing good boots and it was a short distance.

According to the lease, the club was responsible for the exterior areas and, in fact, kept a bucket of salt to be used to keep the sidewalk clear.

Liability Waiver

One of the major issues was whether the waiver signed by Hoffner protected the club from liability for injuries on the sidewalk or protected only for activities within the building. The waiver language included two parts – an indemnification section and a waiver section; pertinent parts include:

INDEMNIFICATION: Member . . . hereby agrees to indemnify, defend and hold harmless, Fitness Xpress, a division of Mousie Inc. and its officers, employees, contractors, agents, successors or assigns from any and all claims for liability against [sic] without limitation, including . . . expenses incurred either directly or indirectly reason of, resulting from, or associated in anyway [sic] without limitation, with the Membership and/or Fitness Xpress. Member also acknowledges that she has reviewed and executed  the Waiver of Liability attached hereto as part of this agreement prior to engaging in any physical activities or programs at Fitness Xpress according to the RELEASE below.

 

RELEASE: I, the member or participant . . . , understand and agree that fitness activities including weight loss may be hazardous activities and I . . . should contact a healthcare professional or doctor before beginning any new activities or weight loss program. I am voluntarily participating in these activities and using the Fitness Xpress, (Mousie Inc.) facilities and equipment, at my sole risk, with full knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death related hereto.

In consideration of being allowed to participate in the activities and programs of Fitness Xpress (Mousie, Inc.) and use of its facilities  and equipment, in the addition of any payment of any fees or charges, I do hereby waive, release and forever discharge Fitness Xpress, Mousie Inc. its officers, agents, employees, representatives, executors, and all  others from any responsibilities or liabilities for any injuries or damage resulting from my and/or my daughter(s) [sic], or my belongings, including those caused by any negligent act or commission, in connection with participation/membership or use of equipment at Fitness Xpress and Mousie Inc.

Fitness Xpress’s Argument

  1. The waiver precluded liability for all defendants for slip-and-fall accidents on the sidewalk.
  2. Fitness Xpress lacked possession and control of the premises where Hoffner fell, thus no liability.
  3. The waiver contract applied to their liability for Hoffner’s slip and fall on the ice before entering the exercise facility because the accident was included in the contract’s language releasing “all others from any responsibilities or liabilities for any injuries,” including those caused by “any negligent act or commission, in connection with participation/membership”

Hoffner’s Argument

  1. The language stated Hoffner was “using the Fitness Xpress (Mousie Inc.) facilities and equipment, at my sole risk.” This language provided an apparent limitation of liability related to the actual use of the fitness facility and its equipment, not liability encountered en route to the fitness center.
  2. Plaintiffs also maintain that the language “release and forever discharge . . . from any responsibilities or liabilities for any injuries or damage resulting from my and/or my daughter(s) [sic], or my belongings, including those caused by any negligent act or commission, in connection with participation/membership or use of equipment” was ambiguous concerning which actions triggered the release.

Your Question

Does the waiver protect Fitness Xpress from liability for both any negligence occurring within the building, during the use of equipment, and failing to keep the exterior sidewalk free of ice?

Or, does the waiver protect the club only from liability for negligent acts connected with participation or use of equipment at the club?

Reread the waiver again carefully, paying attention to what it is actually saying. Michigan law provides that a contract must be interpreted according to its plain and ordinary meaning.

When you have your answer, scroll down to find out what the court decided.

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The court commented that the release seemed to pertain to the nature of the business, i.e., fitness activities and equipment, rather than falling on a sidewalk outside the exercise facility, but …

The language of the contract could reasonably be interpreted broadly – (to include a slip and fall while attempting to enter Fitness Xpress),

or it could reasonably be interpreted narrowly – (to include only activities related to exercise and weight loss that were specifically discussed in the release portion of the contract.)

The trial court found the contract was ambiguous. Michigan law provides “If the contract is subject to two reasonable interpretations, factual development is necessary to determine the intent of the parties and summary disposition is therefore inappropriate.”  The appellate court ruled that the trial court was correct in not granting summary judgment based on the waiver. Where facts are in doubt, as in this case, the jury should decide if the waiver protected the defendant (in this case, Fitness Xpress) from liability.