Lawyers are finding ways around waivers that have worked to protect fitness centers in the past.
Fitness centers are increasingly using prospectively executed releases/waivers to defend against claims put forth by users of their facilities to bar successful claims and suits. When they have been used to bar so-called ordinary negligence allegations, and where they have been properly worded and administered, these documents have generally been given legal force in most states to bar successful claim and suit - even in the face of claims that users did not read them, understand them or interpret them to bar their own particular claim or situation.
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.