Gross Negligence Claims and Releases
David L. Herbert
Skirting around a waiverIn those states where these releases are recognized and not prohibited, such documents have been effective in reducing the number of verdicts and judgments against facilities. However, to the extent that these contract-type documents have been enforced by the courts, facility users and their lawyers have looked for alternative claims to assert based on particular kinds of conduct. In this regard, claims of gross negligence or even intentional or willful conduct may be put forth against some facilities in order to avoid the bar provided by enforceable release documents that withstand ordinary negligence claims. These release documents — on public policy grounds — may not be used to bar claims related to more culpable conduct than ordinary negligence.
For example, in a recent court ruling from a Chicago, Ill., trial court, the plaintiff, as personal representative of the estate of a deceased facility user, filed suit against the defendant facility based on the claim that the facility should have had an AED in its facility to respond to the heart attack the plaintiff experienced while exercising at the fitness center in November 2005. Six separate claims were asserted against the facility, including negligence, gross negligence, fraud and breach of warranties.
In response to a defense motion to dismiss the case, the court determined that a prospectively executed release that the decedent signed barred the negligence claim. However, the court also ruled that the release could not bar the claim of gross negligence. As a consequence, and based on that one cause of action described in a series of allegations asserting gross negligence, the case against the facility will go forward.
While the mere allegations of a pleading are all that is considered on a motion to dismiss — as opposed to any determination based on evidence that is actually presented later at trial — the court ruled that the plaintiff's "allegations ... more than met" the required burden to present a claim of gross negligence, subject to the presentation of later evidence. Consequently, even though the court ruled against the plaintiff on all claims except the one for gross negligence, the case will proceed on that basis.
Protecting your facilityDue to rulings like this one, and based on the fact that prospectively executed releases of liability cannot bar claims of gross negligence, facilities may well face more similar claims in the future, some of which may go to trial. The use of waivers and releases, coupled with vigilant adherence to the developing standards of care, may well be the best path for facilities to follow to avoid successful claims and suits.
Facility of the Week
Ithaca College Athletics and Events Center