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How Waivers Can Protect Fitness Facilities

Here are some of the causes of lawsuits in fitness centers, and the effect of waivers on liability in specific cases.

A woman was seated in a whirlpool when a strong gust of wind blew down an umbrella used to shade it. A broken piece of umbrella struck the woman in the back, causing injury. The woman had signed a membership agreement that included a waiver section absolving the fitness center from responsibility for all claims arising out of the member's use of the health club, facilities or equipment. In a 2004 ruling, the court found that the waiver was unambiguous, and barred recovery by the injured member (Peters vs. Bally's Holiday Spa Health Clubs of California, 2004 Cal. App. Unpub. LEXIS 3547).

Wise fitness center owners and fitness professionals are justifiably concerned about lawsuits and legal liability. Of course, the best way to avoid negligence lawsuits is to prevent the injury from occurring. To do this, consult with a person knowledgeable in risk management, institute a risk-management program, and continue to monitor and maintain the program.

One aspect of a sound risk-management program is the use of liability waivers. A liability waiver relieves the provider of liability for negligence, and bars recovery by the injured party. This column illustrates some of the causes of lawsuits, and the effect of waivers on liability in specific cases.

Why people sue

Many suits arise from slip and fall incidents. In one recent case, a woman attended a water aerobics class in a facility connected to a hotel. She left the pool and entered the lobby, where she slipped on the highly polished floor and fell. Management had been warned of the slippery condition on numerous occasions. In another case, a man walked through a shower area and stepped on a non-secured mat that slipped from under him. He fell and suffered injury. Also, a woman slipped and fell in a hot tub striking her head. In each case, the court found that the waiver was enforceable and barred recovery.

Another source of lawsuits is injuries resulting from the use of equipment. A treadmill started spontaneously and threw a woman from it. Another woman was using an arm curl machine when it turned over on her. A man was injured while using a squat machine. As he stepped down from the machine, the weights fell and broke his leg. He was given no instruction as to the machine's use, and no signs were posted. Another man was badly burned when he leaned against a heated pipe in a crowded steam room. In addition, a member was trying to turn the television set so he could see it, when it fell on him. In each of these cases, the court ruled in favor of the fitness center, finding that the waiver provided protection.

However, waivers do not always protect. For instance, in another case, a woman doing step aerobics on a rectangular platform while simultaneously using an elastic band fell and fractured her ankle. The court ruled that the waiver was not enforceable because the plaintiff was unaware of the waiver due to circumstances, placement, readability and color of the waiver.

Suits also result from other kinds of injury. In one case, a member collapsed while on the treadmill. Relativesof the victim alleged that the facility negligently failed to render appropriate medical care, and prevented a good Samaritan from doing so. The court ruled that the waiver was not enforceable because the alleged actions were not within the scope of the waiver. In another case, a YMCA offering childcare was sued when a four-year-old child sexually touched another four-year-old. The YMCA was aware of the propensity of the youngster to such inappropriate behavior. The YMCA claimed that a waiver signed by the parents barred the legal action; however, the California court ruled that to permit a childcare provider to contract away its duty of ordinary care is against public policy. The waiver did not protect the provider.

Waiver protection

A well-written, properly administered waiver can protect service providers from liability for negligence under certain circumstances in at least 46 states. For maximum protection, fitness facilities and professionals should always require waivers to be signed, and follow effective procedures.

To prepare a waiver or to evaluate a waiver currently being used,the new edition of Waivers & Releases of Liabilityis helpful (4th edition, by Doyice J. Cotten and Mary B. Cotten). It presents waiver law in each state, the limitations of waivers, how to write and administer effective waivers, and a number of illustrative waivers. The book is available from the authors at 912 764-4848 or djcotten@gmail.com.

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