Readers of this column already know that most waivers - if written correctly - will be upheld by the courts as long as they don't violate public policy.
Readers of this column already know that most waivers - if written correctly - will be upheld by the courts as long as they don't violate public policy. However, not all states look at waivers the same. For example, in the states of Louisiana, Montana, New Mexico and Virginia, all waivers violate public policy. In some states, the courts will uphold the enforceability of a waiver or exculpatory clause in almost any situation, provided the decision to sign the waiver was voluntary.
In other states, however, the courts look upon the use of waivers with disfavor and will closely scrutinize the document in an attempt to void it, if possible. One such state is Wisconsin, as illustrated in the case of Brooten v. Chetek Fitness [WI App 71; 2013 Wisc. App LEXIS 370].
JUST THE FACTS
Ronald Brooten was bench-pressing weights at Chetek Fitness 24/7 in Chetek, Wis., when the adjustable T-bar that allowed the bench to transition between decline, flat or incline positions shifted laterally, causing the bench to collapse and Brooten to be injured. Attention immediately turned to the manufacturer of the bench, which claimed that if the bench's T-bar was properly installed and the supporting bolts tightened, the bar would not move from side to side. The question then became whether or not the bolts securing the T-bar on the bench were sufficiently tightened and whether or not the bench was correctly assembled or maintained.
After input from the manufacturer, and as a result of his injuries, Brooten sued Chetek Fitness for negligence. However, based on the waiver Brooten signed before Chetek Fitness would allow him to use the facility, the trial court barred Brooten's claims and granted summary judgment in favor of Chetek Fitness. Brooten appealed, arguing that the waiver he signed when joining the health club wasn't enforceable and that the court's decision should be reversed.
The Wisconsin Court of Appeals agreed. In its review of the appeal, the court focused on the interpretation of the waiver form and whether it relieved Chetek Fitness of liability for injury caused by negligence. The court specifically noted that no waiver that the Wisconsin Supreme Court had examined over the past 25 years had been enforceable. Therefore, the Court of Appeals held that such clauses must be closely scrutinized and construed strictly against the party seeking to rely on it. In examining the waiver created by Chetek Fitness, the Court of Appeals concluded that the waiver was contrary to public policy and, therefore, unenforceable.
In support of its decision, the Court of Appeals found that the waiver was presented on a take-it-or-leave-it basis with no opportunity to bargain over terms. The absence of an opportunity to bargain over the clause's terms was a significant factor in violation of public policy. The court also cited that the waiver was impermissibly broad and all-inclusive. Rather than absolving the company from claims of negligence, the Chetek Fitness waiver required participants to waive "liability for personal injury, property damage or wrongful death caused by negligence or other cause." That type of waiver, the Court of Appeals ruled, violates public policy if it is so broad that it would absolve the defendant from any injury to the plaintiff for any reason.
Besides extending beyond negligence claims, the Court of Appeals found that Chetek Fitness tried to extend the scope of the waiver even further by requiring Brooten and all new members to both "defend and indemnify Chetek Fitness 24/7 and its representatives, employees and volunteers from any and all claims which may arise out of the use of any equipment or participation in recreational and fitness activities." This language made the waiver unenforceable because it exceeded the contemplation of the parties, the Court of Appeals ruled.
In support of its ruling, the Court of Appeals noted that an ordinary consumer would not contemplate that "defend and indemnify" language buried in the middle of the form's text would require him or her to provide a legal defense for Chetek Fitness.
Although fitness administrators living outside of Wisconsin may believe that there is little to learn from the Court of Appeals' decision, there are numerous takeaways that all fitness administrators should consider when it comes to creating a valid waiver:
- Clearly title document "Waiver"
- Use clear language that includes the words "negligence" and "indemnification"
- Limit length to one page
- Avoid fraudulent statements
- Include a statement indicating the signer read the waiver
As the Court of Appeals stated, case law does not favor the use of waivers. This is mainly because under tort law, individuals should be held responsible for their negligent conduct. Waivers, however, allow an individual or organization to escape that responsibility. Since waivers can only protect against negligence, club owners must make sure that any waiver they use only releases the organization and its employees from negligence. And while the Court of Appeals may have found the "defend and indemnify" language in the waiver overly broad and in violation of public policy, there are a number of states that allow such language, especially indemnity clauses. Club owners should determine how their individual state courts view such language before removing it from their waivers.
Waiver and Release of Liability
In agreeing to participate in fitness activities at Chetek Fitness 24/7, I agree as follows:
I fully understand and acknowledge that recreational and fitness activities have (a) inherent risks, dangers, and hazards and such exists in my use of any equipment and my participation in these activities; (b) my participation in such activities and/or use of such equipment may result in injury or illness including, but not limited to bodily injury, disease, strains, fractures, partial and/or total paralysis, death or other ailments that, could cause serious disability; (c) these risks and dangers may be caused by the negligence of the representatives, employees, or volunteers of Chetek Fitness 24/7, the negligence of the participants, the negligence of others, accidents, breaches of contract, or other causes; (d) by my participation in these activities and for use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and/or damages whether caused in whole or in part by the negligence or the conduct of the representatives, employees, or volunteers of Chetek Fitness 24/7, or by any other person.
In agreeing to participate in fitness related activities at Chetek Fitness 24/7, I acknowledge that certain injuries are possible. These include but are not limited to: Minor or major bone fracture, scrapes, abrasions, lacerations, head or body bumps, bruises, muscle, tendon, or ligament strains or sprains. These might be caused by: Slips, falls, and other gravity-related mishaps, equipment failure, overstraining, or exceeding physical limitations, human error, disregard for guidelines, rules, and standard practice, ignorance or inattention.
I, on behalf of myself, my personal representatives and my heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Chetek Fitness 24/7 and its representatives, employees, and volunteers from any and all claims, actions or losses for bodily injury, property damage, wrongful death, loss of services or otherwise which may arise out of my use of any equipment or participation in these activities. I specifically understand that I am releasing, discharging, and waiving any claims or actions that I may have presently or in the future for the negligent acts or other conduct by the representatives, employees, and volunteers of Chetek Fitness 24/7.
I HAVE READ THE ABOVE WAIVER AND RELEASE AND BY SIGNING IT AGREE IT IS MY INTENTION TO EXEMPT AND RELIEVE CHETEK FITNESS 24/7 FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.
Following the above language were five blank lines for, respectively, the participant's name, address, phone number and signature, and the date.