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The Case of the Missing Waiver

Could U.S. Surgical Corp. win a lawsuit with a defense based on a waiver it said existed - but couldn't produce?

Jody Corso was injured while performing an aerobic exercise under the direction of an instructor. She fell while using an exercise ball, and while quickly returning to her feet, she injured herself. She filed suit against the United States Surgical Corp. (owner of the fitness center provided for the use of its employees), claiming the corporation, its agents, servants and employees were negligent in allowing the gymnasium floor to become dusty, unclean and slippery; in failing to remedy the dangerous and defective condition; in failing to erect proper safeguards, signs or warnings; in failing to inspect the premises; and in maintaining the gym in these conditions. U.S. Surgical asserted two defenses: 1) contributory negligence on the part of the plaintiff, and 2) that the claim is barred by a waiver of liability signed by the plaintiff when she joined the center. U.S. Surgical, however, faced a problem with this defense. The corporation was unable to produce a waiver signed by the plaintiff [Corso v. United States Surgical Corp., 2005 Conn. Super. LEXIS 1373].

Saved by the system

The plaintiff argued that the failure to produce a signed waiver created a genuine issue of fact; however, the court stated that Connecticut law has long recognized that a party may use secondary evidence to establish the existence and terms of a written agreement that no longer exists. Subsequently, the defendant corporation submitted an affidavit of the manager of the health and wellness programs. In the affidavit, she stated that employees who wish to become members of the fitness center are provided with an application packet. They must read the information packet, complete a health screening questionnaire, have a blood pressure reading, read and sign a participation consent form, pay the membership fee, return all signed forms, go through a "fitness initial" with the staff and accept a cardkey coded for entry into the center. A member of the fitness center would review the provisions of the "Agreement and Release of Liability," and then sign the agreement. The manager emphasized that the employee must sign the waiver prior to entering the facility, and no exceptions to this procedure are allowed.
Waivers can be used to protect a service provider from liability for injuries resulting from ordinary negligence.
The language of the waiver stated, in part, "I do hereby waive ... all others from any and all responsibilities or liability for injuries or damages resulting from my participation in any activities or my use of equipment ... in any activities at said facility. I do also hereby release ... others from any responsibility ... including those caused by the negligent act or omission of any of those mentioned ...." The appellate court ruled that there is no evidence controverting the fact that the plaintiff signed the release, nor is there evidence controverting the terms of the release. The court then determined that the waiver was not ambiguous and that it effectively released U.S. Surgical from liability for the injury to Corso.

Risk management principles

It is well-established that liability waivers can be used to protect a service provider from liability for injuries resulting from the ordinary negligence of the service provider. Service providers would be wise to use a properly drafted waiver to add to the financial security of the business. Service providers should develop and maintain a system that provides for safe storage and maintenance of waivers, as well as all important documents and records. The system should provide for easy retrieval of such documents, and should provide for long-term storage. All waivers should be stored - not just those signed by parties who were injured. Such documents should be kept, at minimum, until the statute of limitations on a possible lawsuit has expired. This time period will vary among states. In general, it ranges from one to four years. Consult with a local attorney for the law in your state. Otherwise, keep them for at least four years. When a participant is a minor, the statute of limitations clock does not begin to tick until the minor reaches the age of majority - so, be prepared to keep these agreements even longer. Do not operate on a hit-or-miss approach. U.S. Surgical was protected because it had firm, documented, no-exception policies regarding the requirement of patrons to sign a waiver. All providers need such firm policies so that a waiver is likely to be enforced even if it cannot be supplied.

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