Owners of health and fitness clubs frequently require patrons to sign liability waivers and exculpatory agreements in order to limit their members from bringing claims for injury or even death. Are these liability waivers enforceable? Here is a rundown of what owners need to know.
General Validity of Liability Waivers and Exculpatory Agreements
Courts across the country have examined whether or not such exculpatory agreements violate public policy and the majority (but not all) agree that usually they do not. Fitness centers are not public necessities, unlike utilities or common carriers, and therefore shifting liability for negligence is permissible. However, some courts have held that agreements that attempt to release a health club from liability for violating state statutes does violate public policy and is therefore not enforceable. A Connecticut court went so far as to conclude that exculpatory agreements violate public policy when they undermine the tort compensation system.
Because exculpatory agreements are typically preprinted contracts, offered on a take-it-or-leave-it (no negotiation) basis, courts have also examined whether these agreements are unenforceable contracts of adhesion. The courts are split on this - while exculpatory agreements are generally considered to be contracts of adhesion, they may nevertheless still be enforceable because the contract at hand does not rise to the level of being unconscionable. Therefore, any health and fitness club that uses limitation of liability language in its agreements should have an attorney well-versed in contracts to review the enforceability of their form language.
Construction of Liability Waivers and Exculpatory Agreements
Despite the general enforceability of exculpatory agreements, the releases may only exempt health clubs from liability for injuries resulting from ordinary negligence and not injuries resulting from gross negligence or intentional torts. Courts are divided as to whether it is necessary for an exculpatory agreement to contain the word "negligence" in order to be enforceable. While somecourts consider a specific reference to a health club’s negligence or fault to be a prerequisite of enforcement, other courts agree that this step is unnecessary as long as it is clear from the agreement that the parties intended to release the club from liability for its own negligence.
Because exculpatory agreements shift liability from one party to another, exculpatory agreements are subject to close judicial scrutiny. THE LANGUAGE IN A RELEASE MUST BE CLEAR AND UNAMBIGUOUS IN ORDER TO BE ENFORCED. That is why the language in waivers is sometimes in all caps and bold lettering. If the language in a release is ambiguous or unclear, the release will not be considered enforceable. Agreements where the release language is sufficiently conspicuous as to alert the signee that they are waiving their rights will generally be enforced. Conversely, agreements with inconspicuous, hidden, or otherwise obscured language may not be enforced (for example, extremely small font).
Effect of Liability Waivers and Exculpatory Agreements
When ascertaining whether a release is enforceable, courts examine whether a particular party is protected from liability by the release as well as whether the release applies to a patron. Courts may also consider whether a release has expired or whether the release continues to be effectual. Generally, patrons who claim not to have read releases do not prevail in attempts to invalidate the releases on those grounds. Releases signed by one person on behalf of another have even been found to be effective. Additionally, exercise facilities may invoke releases as a defense to contribution claims by equipment manufacturers as well as against individual patrons who were injured at their facilities.
Additionally, a release will be generally be effective if an injury was within the scope of injuries contemplated by a release, but if an injury is not foreseeable from the release, that release will be considered inoperative and will not shield a health club from liability.
Typically, exculpatory agreements are disfavored by courts and are strictly construed against the drafter. Membership agreements should ensure that any release clause should be conspicuous, legibly printed in large type, and easily understandable. Although not every jurisdiction requires the release to specifically mention the facility operator’s own negligence, it is advisable to include it. Further, while a business may owe a common-law duty of care to adult patrons it may additionally owe a duty of supervision and a duty to protect with respect to minors.
Suits by injured patrons are frequently dealt with on motions for summary judgment with the release raised as a defense to liability. In order to overcome a motion for summary judgment, the plaintiff may do so by establishing a genuine issue of material fact. Plaintiffs have successfully defeated motions for summary judgment when they have sufficiently raised questions of fact as to the conspicuousness of a release clause, whether the waiver was fairly and honestly negotiated and understood by both parties and whether the patron signing the agreement was rushed and not given an opportunity to read the waiver.