When Waivers Don't Protect
Doyice J. Cotten
Reoven Capri suffered injury when he slipped and fell on the pool deck while walking to the pool. He returned to the pool the next day and found an accumulation of algae around the drain on the pool deck where he fell. He filed suit against LA Fitness International, alleging that the facility was both negligent and negligent per se (a form of negligence that results from the violation of a statute — conduct that may be treated as negligence without argument, or proof as to the particular circumstances [Black's Law Dictionary, 1990]). The claim alleging negligence failed because the plaintiff had signed a waiver releasing the fitness center from liability for negligence; however, the claim of negligence per se was not barred by the waiver (Capri v. LA Fitness International, 2006 Cal. App. LEXIS 201).
California Safety Code section 116040 states, "Every person operating or maintaining a public swimming pool must do so in a sanitary, healthful and safe manner." Further, Safety Code section 116043 says, "Every public swimming pool, including swimming pool structure, ... [must take] measures to ensure safety of bathers, and measures to ensure personal cleanliness of bathers shall be such that the public swimming pool is at all times sanitary, healthful and safe." These statutes are a part of a regulatory scheme for pool safety, and set standards for swimming pool sanitation and safety. Section 116065 states, "Every person who violates any provision of this article ... is guilty of a misdemeanor, punishable by a fine ... or imprisonment ... or both."
The appellate court found the trial court erred in granting summary judgment to the defendant on the negligence per se claim, reversed that action since the waiver was not enforceable, and sent the case back to the trial court to determine if the fitness center had been negligent per se.
The facility claimed that, even if the waiver was not enforceable, it was protected because the plaintiff had assumed the risk of the activity. The court held that, since there was an allegation of a violation of the law, assumption of risk was precluded.
As a general rule, people have a duty to use due care to avoid injury to others, and may be held liable for careless conduct that injures another party (Civ. Code, 1714). Thus, a fitness facility is required to use due care to eliminate dangerous conditions on its property. In sport or recreation settings, however, otherwise dangerous conditions are sometimes an integral part of the activity, so there is no duty to eliminate them. The nature of the activity is important in determining the duty of the provider. In general, providers do not have a duty to eliminate inherent risks, but they do have a duty to use due care not to increase the risks of the activity. In this case, the facility had a duty not to increase the risks of swimming by allowing the deck to become slippery with algae — which is not an inherent risk in swimming.
Risk management principlesThere are two risk management principles fitness facility owners and managers should keep in mind.
1. Regular, effective maintenance is necessary to maintain a safe environment. Maintenance includes clean floors and equipment, picking up trash and litter, regular inspection of equipment, repair or removal of hazards, and more. The failure of LA Fitness to properly maintain the pool deck may well result in a large judgment against the facility.
2. While waivers can provide liability protection, there are many limitations to waivers. In this case, LA Fitness was found not liable for ordinary negligence, but waivers will fail in a case like this where a law was violated. Other limitations include 1) when the participant is a minor (in most states, waivers signed by parents on behalf of minors are not valid), 2) when the signer is under the influence of alcohol, 3) when strict liability is involved and 4) when a non-signing spouse files a claim for loss due to an injury to the signing spouse (in many states).
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