Are Your Waivers Crystal Clear?

A recent California Court of Appeals decision should prompt all fitness facilities to review their release/waiver documents to determine if they will be effective in barring suits against them. In this case [Zipusch v. LA Workout Inc., 66 Cal.Rptr.3d 704 (Cal.App.Dist.2, Oct. 3, 2007)], the plaintiff, a member of a fitness center owned by the defendant, suffered personal injuries when her foot became stuck to a sticky substance on a treadmill at the facility. She filed suit "for general negligence and premises liability, alleging its failure to inspect and maintain the exercise equipment resulted in the sticky substance remaining on the treadmill, causing her to lose her balance when her foot became stuck to it."

In response to the plaintiff's suit, the defendant answered the complaint and moved for summary judgment, contending that the membership agreement that the plaintiff signed prospectively released the facility from claims arising out of her use of the facility. The trial court granted that motion and the plaintiff appealed.

Waiver language

The release contained in the membership agreement, in part, provided the following:

"The use of the facility at LA Workout naturally involves the risk of injury to yourself or your guest, whether you or someone else cause [sic] it. As such, you understand and voluntarily accept this risk and agree that LA Workout will not be liable for injury, including without limitation, personal, bodily or mental injury, economic loss or damage to you, your spouses [sic], guests, unborn child, or relatives resulting from the negligence or other acts of anyone else using LA Workout. If there is any claim by anyone based on injury, loss or damage described here, which involves you or your guest, you agree to 1) defend LA Workout against such claims and pay LA Workout for all expenses relating to the claim and 2) indemnify LA Workout for all liabilities to you, your spouse, guests, relatives or anyone else resulting from such claims. The member or guest will defend and indemnify LA Workout for any negligence EXCEPT the sole negligence of the club. This agreement is not effective until you sign and date it. By signing below, you agree to the terms above."

Avoid ambiguities

The appellate court reviewed the facts and the law, and applied a well-known legal doctrine requiring any ambiguities in a contract to be construed against the drafter of the agreement. It ruled that the release in question, which it characterized as an "assumption of risk," did not release the defendant from its own negligence, as opposed to the negligence of third parties. A careful reading of the release indicated that it did not explicitly release the facility for its own negligence. The appellate court, therefore, determined that the release did not "clearly, explicitly and comprehensibly exculpate" the defendant "from its own negligence," and, therefore, did not give the agreement legal effect so as to bar the plaintiff's claims. For this and other reasons, the appellate court reversed the trial court's decision and returned the case to the lower court.

In light of decisions like this one, it is important — if not critical — for all facilities to carefully review their membership contracts containing prospective release/assumption of risk provisions. Such provisions should be carefully written, compared to documents that have been given legal effect and, therefore, upheld within the jurisdiction where such facilities are located, and modified as necessary to help ensure that such clauses will be enforceable.

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