"Facility owners can fall hard by relying exclusively on waivers to ward off negligence claims."

It is a fact that in at least 45 states, a properly worded waiver will protect facility owners and recreation providers from liability resulting from ordinary negligence. Yet, relying on waivers exclusively is short-sighted and potentially costly, as a recent case demonstrates.

Reoven Capri v. L.A. Fitness International [136 Cal. App. 4th 1078 (2006)] pitted a health club member who slipped and fell on the club's pool deck against the owners who, according to the plaintiff, negligently allowed the slippery condition to occur. The day after his fall, which resulted in an undisclosed injury, Reoven Capri returned to the club and discovered an accumulation of algae and other similar growth around the drain on the pool deck, in the area where his fall took place. However, in response to his subsequent lawsuit, L.A. Fitness noted that because Capri had, as had all members upon joining the club, signed a membership agreement containing a "release and waiver of liability," his claim would have to be barred by the courts. Even if a court found that the waiver was void, the club argued further, slipping on a pool deck was an assumed risk of using a pool. The trial court agreed, and granted the club summary judgment.

California courts have consistently held that the use of waivers in the context of recreational sports do not impact the public interest, and are not void as against public policy. However, arguing before the California Court of Appeal, Capri charged that L.A. Fitness was in violation of Section 1668 of the California Civil Code, which states that it is against public policy to exempt a party from liability based on a violation of law. In support of this argument, Capri noted that if the club's waiver were upheld, the court would in essence be exempting L.A. Fitness from sections 116040 and 116043 of the state Health and Safety Code, of which L.A. Fitness was (he alleged) in clear violation. Section 116040 provides that "Every person operating or maintaining a public swimming pool must do so in a sanitary, healthful and safe manner," while Section 116043 states:

Every public swimming pool, including swimming pool structure, appurtenances, operation, source of water supply, amount and quality of water recirculated and in the pool, method of water purification, lifesaving apparatus, measures to insure safety of bathers, and measures to insure personal cleanliness of bathers shall be such that the public swimming pool is at all times sanitary, healthful and safe.

Since Capri was able to show that his injuries were predicated upon the alleged violation of the Health and Safety Code, the Court of Appeal concluded that the waiver in the membership agreement was invalid under Section 1668 and could not be a defense if the evidence showed such violation to be a proximate cause of Capri's loss.

In response, L.A. Fitness argued that even if the waiver were ruled invalid under Section 1668, Capri assumed the risk, both expressly and implicatively. In particular, the club argued that every membership agreement contained an express-assumption-of-risk clause, under which Capri expressly assumed the risk of injury while using the club's facilities.

In rejecting L.A. Fitness' defense, the Court of Appeal ruled that since the express-assumption-of-risk clause was, as the waiver was, contained in the membership agreement, the assumption-of-risk clause still sought to exempt L.A. Fitness for its violation of the swimming pool safety statutes, and hence was invalid under Section 1668.

Finally, the Court of Appeal also rejected the club's argument that the lawsuit should still be barred under an implied-assumption-of-risk defense, since slipping and falling around a pool is an inherent risk in the activity of swimming. While the court noted that under the implied-assumption-of-risk defense L.A. Fitness had no legal duty to eliminate all the risks inherent in the activity, it did have a duty to use due care not to increase the risks to Capri over and above those inherent in the activity. Applying the rule to the current case, the court held that while there are risks inherent in the activity of swimming (such as drowning, hitting the wall or pool floor, or colliding with another swimmer), the risk of algae growing on the pool deck and causing it to become dangerously slippery is not one of them. L.A. Fitness, the court ruled, had a duty to keep the deck clean.

Although the Court of Appeal's decision only reversed the district court and the case was remanded for further proceedings, this decision offers an important warning to facility owners and recreation providers. With most courts willing to uphold the use of waivers, it is easy for facility owners and recreation providers to rely too much on these slips of paper to protect themselves, when it is apparent that the best defense against a lawsuit is prevention. Therefore, even though the use of waivers should be part of every membership agreement, it is essential that facility owners and recreation providers develop a plan whereby they or someone on their staff conduct daily, weekly and monthly risk-management plans to correct facility or equipment defects.