Sports and recreation professionals know that the risk of injury during physical activities is unavoidable. To protect themselves from liability and economic loss, facility owners and service providers often rely on waivers.
A waiver is a written contract in which a participant or user of a service, in consideration for the right to participate in the activity, agrees to relinquish the right to pursue future legal action against the service provider or its employees. The primary function of the waiver is to protect the service provider from liability for injuries resulting from the ordinary negligence of the service provider and its employees.
In most states, the courts will enforce waivers if they are written properly and signed by an informed adult. One of the exceptions to this rule, however, is if the waiver violates public policy. While public policy can differ from state to state, the courts generally will void a waiver if it violates an overriding public policy based on legal precedents, government practice or obvious ethical or moral standards. The courts will also find that a waiver violates public policy if it seeks to protect any persons from responsibility for their own fraud or violation of the law. A good illustration of this point can be found in Ziegler v. Bay Clubs Co., 2020 Cal. App. Unpub. LEXIS 650.
Access and egress
Patricia Ziegler had completed her workout on a treadmill within a row of treadmills at a California location of The Bay Club gym. Ziegler, who had unobstructed access to an aisle directly behind the treadmill, chose instead to step off the side of the treadmill and walk between two treadmills toward the aisle located in front of the machines.
Ziegler testified that there was approximately 2 feet of clearance between the treadmills at the time of the incident, and that she and other members of The Bay Club commonly used this gap as a path to walk to the aisle in front of the treadmills. When trying to step over a protective metal box covering electrical wires, referred to as a “wireway,” Ziegler got her foot caught, causing her to fall and injure her elbow. As a result of her injuries, Ziegler sued The Bay Club for negligence.
At trial, Ziegler argued the area in front of the wireway where Ziegler landed on her elbow was an “aisle” as defined by the California Building Code, and that the area in between the treadmills was a means of egress and an aisle-accessway, as that term is defined by the building code, because it was used to gain access to the aisle. Relying on the building code, Ziegler argued that the means of egress and aisle-accessways must remain unobstructed, and that the placement of the wireway across the aisle-accessway between the treadmill machines was an obstruction that violated the building code and thus voided the waiver.
The Bay Club moved for summary judgment on two grounds. First, it argued that because Ziegler had signed a membership agreement containing a waiver, any claims of negligence against the club were barred. Second, the club claimed that it lacked notice of any dangerous condition on the property and therefore could not be negligent for Ziegler’s injuries.
Voided waiver
In ruling that the waiver was void, the trial court determined that all contracts that have for their object, directly or indirectly, to exempt any persons from responsibility for their own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the public policy. At trial, the jury found that since the wireway violated the California Building Code, and that the violation was a substantial factor in causing Ziegler’s injuries, the waiver was void and did not bar Ziegler’s negligence claim.
As for The Bay Club’s claim that it was not liable for Ziegler’s injuries because club operators lacked notice of the dangerous condition on their property, the court held that Ziegler only needed to show that the dangerous condition existed long enough for The Bay Club to have discovered and corrected it in the exercise of reasonable care. The fact that no other person was injured, the court held, is irrelevant. If the fact that no one else was injured was sufficient, then no property owner would ever be liable for the first accident or incident that occurred in connection with a dangerous condition on the property [Ziegler v. Bay Clubs Co., Llc, 2017 Cal. Super. LEXIS 9795].
While the jury found The Bay Club violated the building code and that the violation was a substantial factor in causing Ziegler’s injuries, the jury also found Ziegler was contributorily negligent. As a result, the jury allocated the fault between The Bay Club and Ziegler at 75% and 25%, respectively. Therefore, although the jury found that Ziegler’s damages amounted to $636,098.18, after making comparative fault adjustments, the trial court entered judgment in favor of Ziegler in the amount of $477,073.64.
On appeal, The Bay Club argued that Ziegler failed to present substantial evidence of a building code violation to support a jury instruction on negligence. In rejecting The Bay Club’s appeal, the appeals court noted a claim of jury instructional error is forfeited on appeal if the defendant fails to object to the instruction at trial. In examining the record of the trial, the appeals court found that attorneys for The Bay Club failed to object to Ziegler’s proposed special instruction setting forth the building code provisions. The Bay Club’s failure to object to these instructions, therefore, forfeited the issue on appeal.
The Bay Club also argued that Ziegler presented no evidence at trial that the space between the treadmills constituted an “aisle-accessway” or a “means of egress” under the building code. Therefore, the club could not have violated the code. In rejecting this argument, the appeals court noted that the building code does not set forth any minimum width requirements for aisle-accessways in a gym. The purpose of the building code’s egress provisions is to ensure occupants have a safe means of exiting the building in the event of a fire.
The appeals court thus held that there was substantial evidence to support the jury’s conclusion that people at the club commonly used the gap between the treadmills as a path to walk to the aisle in front of the machines, and that the space between the treadmills constituted an “aisle-accessway” or other “means of egress” under the building code. As a result, the jury’s conclusion that the wireway was an impermissible obstruction in violation of the building code, and that The Bay Club was negligent in causing Ziegler’s injuries, was reasonable.
Avoidable legal hazard
What can sports and recreation service providers and facility owners learn from Ziegler v. Bay Clubs Co.?
First, while waivers are an important defense against liability and monetary loss, they are not ironclad. As the court in Ziegler noted, if the use of a waiver violates public policy, the court will not enforce it. This is especially true if service providers and facility owners seek to use the waiver to exempt themselves or their employees from liability for intentional torts or criminal behavior.
Second, as the jury indicated, Ziegler contributed to her injuries. As such, the jury needed to allocate the fault between The Bay Club and Ziegler, which it did at 75% and 25%, respectively. Most states use a comparative fault adjustment like the one applied in Ziegler, but others don’t. In some states, if a plaintiff contributes to their own injuries, they are prevented from recovering anything from said injuries.
Finally, this injury and lawsuit could have been avoided if the facility had simply stopped people from using the space between the treadmills as an aisle-accessway. If they wanted people to use this 2-foot space as an aisle-accessway, they should have somehow removed or modified the protective metal box covering electrical wires. By allowing people to use the space without making the area safe, the owners of the club were inviting an injury and a lawsuit.
