As a result of the COVID-19 pandemic, many health and fitness clubs moved away from face-to-face registrations, where the new member filled out the membership registration forms and liability waivers on site. Instead, clubs migrated to safer and, in most cases, more efficient contactless methods
Perhaps the easiest method used by facilities was simply to have new members register and complete the waiver online. The benefits of such contactless methods are that they not only streamline the registration and check-in process, but also free up staff members to conduct facility tours or to supervise members working out in the club. Moreover, contactless methods cut down on document storage — all forms are stored on a hard drive where they are easily accessible.
In addition to asking members to use their personal computers or phones to register online, clubs have begun employing on-site kiosks to handle new member registrations and waiver forms.
With new members and guests using computers, phones and kiosks to register and sign waivers, questions have been raised concerning the validity of the waivers used in such cases. Did the person signing the documents know exactly what they were signing? A good example of how the courts have handled the issue of online or electronic waivers is Lataya Young v. Planet Health Fitness LLC, 2022 Cal. App. Unpub. LEXIS 7715.
Of waivers and weights
When Takya Keys signed up online for a Planet Fitness membership, the membership entitled her to bring a guest at no cost. Keys invited Lataya Young to be her guest.
To become a guest, Young used a kiosk provided by Planet Fitness, in which she was prompted to enter her name and contact information. The kiosk also required guests to sign a document known as the Black Card Guest Waiver. In signing the Black Card Guest Waiver, Young agreed to “voluntarily accept full responsibility for the risk of injury or loss arising out of or related to my use of the facilities including, without limitation, exercise equipment” and that she had “read and agreed to the terms and conditions above and I agree that my electronic signature below is intended to have the same force and effect as a manual signature.” When prompted, Young signed her name on a signature line.
As Keys’ guest, Young used the Planet Fitness facility on 21 occasions, for approximately one to two hours each visit. During one of her visits, Young was stretching in a room at Planet Fitness when Keys began using equipment known as an Ab Coaster. Although Keys read the instructions on the Ab Coaster before using it, she did not check if there were weights on it. Once she started using the Ab Coaster, she realized there were weights attached, because she could feel resistance as she swung back and forth. While using the Ab Coaster, Keys and Young were talking when suddenly Young felt a pain in her foot. Planet Fitness personnel were alerted and called an ambulance. While no one saw what happened, there was a 10- or 15-pound weight on the floor next to Young, which was believed to have come off the Ab Coaster and struck Young’s foot.
As a result of her injury, Young filed a negligence lawsuit against Planet Fitness. In her lawsuit, Young argued that Planet Fitness was negligent on the grounds that the weight was insufficiently fastened to the Ab Coaster, and that Planet Fitness lacked adequate procedures to prevent injury. Young also argued that the Ab Coaster was defective. While Planet Fitness rejected both claims, it also argued that the waiver Young signed when she registered as a guest of Keys barred any claims she may have against Planet Fitness.
In challenging Planet Fitness’ claim that the waiver barred her lawsuit, Young argued that the waiver was unconscionable because it was not fully visible when the kiosk prompted her, without explanation, to sign a narrow space on a tiny screen, which did not contain simultaneously both the signature line and the offending language. Young also argued that the waiver was void because the release language was placed in the middle of the paragraph and was filled with legalese, which she did not understand. Finally, Young argued that the waiver was void because Planet Fitness’ failure to conduct reasonable inspection and monitoring of the equipment was reckless and therefore outside the scope of the waiver.
The trial court rejected Young’s arguments and granted Planet Fitness’ motion to dismiss the case on the grounds that the waiver was valid.
Unambiguous and explicit
On appeal, the Court of Appeal of California, First Appellate District, held that a waiver, a written release of future liability, reflects an express assumption of the risk and releases the defendant from a normal duty of care. Waivers, however, only apply to ordinary negligence, so long as the act of negligence that resulted in the plaintiff’s injury is reasonably related to the purpose for which the release was given. Therefore, in the context of recreational sports or exercise facilities, waivers are generally valid, provided the release is “clear, unambiguous and explicit” in expressing the intent of the subscribing parties.
In examining the Black Card Guest Waiver used by Planet Fitness, the court found that the waiver was clear, unambiguous and explicit in expressing the parties’ intent that a guest was releasing specified entities and individuals from liability for any injury resulting from their negligence. In addition, the court held that being struck on a foot by a weight falling off a piece of equipment used by another member was reasonably related to the purpose for the release, and causes of action for premises liability and products liability fall within the scope of the waiver. Therefore, the court ruled that the Black Card Guest Waiver protected Planet Fitness from liability regarding Young's claims.
Even if her injury was reasonably related to the use of the gym, Young argued that the waiver was procedurally unconscionable for two reasons.
First, she argued that the waiver was not visible on the kiosk screen that asked for her signature. However, failing to see or read the waiver form does not create a triable factual issue, the court held. “[T]he mere fact that a contract term is not read or understood by the non-drafting party … will not authorize a court to refuse to enforce a contract.” The evidence was that the kiosk requires a would-be guest to agree to the waiver before using the facilities, and Young did not dispute that she signed the kiosk or that her signature is on a printout of the waiver. She presented no evidence as to how the signed waiver could have been printed out with her confirmed signature on it without the waiver being on the kiosk when she signed up to be a guest. Nor did she present any case law that the waiver is of no effect unless her signature and the waiver appeared on the same screen at the same time. Her failure to read or see the waiver does not make it unconscionable. As for the language used in the waiver, the court held that the language of the waiver clearly released Planet Fitness from liability for any injury arising from its negligent conduct or omission. The waiver consisted of just one paragraph, with no other contract terms on the page, so it plainly was not buried in an overly complex printed form.
Second, Young argued that the waiver was unconscionable because it is so one-sided that it shocks the conscience and imposes harsh and oppressive terms. In rejecting this argument, the court found no evidence to explain how the waiver could be deemed one-sided when it resulted in Young gaining free and unlimited use of the Planet Fitness facility as a guest of Keys, or why it is unreasonable for a fitness facility to require liability waivers in exchange for making available its premises, equipment, facilities and services.
In addressing Young’s argument that Planet Fitness — through its employees — acted recklessly, the court noted that while waivers only bar claims for ordinary negligence, but not recklessness or gross negligence, Planet Fitness’ conduct did not rise to the level of gross negligence. As the court noted, gross negligence is a want of even scant care or an extreme departure from the ordinary standard of conduct. Therefore, even if Young was able to show Planet Fitness failed to conduct safety inspections, it would amount to ordinary negligence and would not constitute gross negligence.
Even though the Court of Appeal ruled that the waiver barred Young from recovering any damages she suffered when the weight fell onto her foot, there are still a number of cautionary takeaways that health and fitness club administrators and owners can learn from Young v. Planet Health Fitness LLC.
First, just like printed waivers, for an electronic waiver to be enforceable it must inform the club members or guests of the risks associated with using the facility in clear and unambiguous language. In addition to the risk associated with the facility or activity, the waiver needs to include the rights guests intend to waive. As noted in Young, if the language is not clear and unambiguous, the court may find the waiver void and unenforceable.
Second, the courts will judge the validity of electronic or paperless waivers using the same contract law theories they would use with traditional paper waivers. Therefore, when new members sign or check a box to accept the terms of the waiver, they have legally accepted the waiver and entered into a legally binding agreement, even if, as the court in Young found, the individual did not read the waiver before signing.
As a final word of caution, as noted in Young, club owners and administrators need to remember that waivers are only good against ordinary negligence, not gross negligence or intentional torts. This means the waiver would be unenforceable if a guest were intentionally or recklessly harmed. Such conduct would be considered gross negligence and outside the scope of the waiver.