Waiver law differs from state to state, which means requirements for a valid waiver form differs considerably from one state to another, says Doyice Cotten, an emeritus professor of sport management at Georgia Southern University, Statesboro, GA, where he taught courses in sport law and risk management. Cotten writes waivers for health club operators. For that reason, club operators who have clubs in more than one state or plan to eventually operate in another state should ensure they have a waiver that is good even in the strictest states because that waiver would be good in more lenient states.
Cristina LaMarca, senior associate in the Litigation Group at Kaufman Borgeest & Ryan LLP, New York, says all clubs should require members to sign a waiver form.
“The more specific and allencompassing type form, the better,” says LaMarca, whose firm has defended fitness facilities in lawsuits, some of which have included the waiver form as the deciding factor. “The courts really frown upon general and open type waiver forms. So it really needs to be fairly specific and unambiguous.”
How the waiver is designed can be important in a lawsuit. The waiver should be on a separate form with its own signature line. If it is incorporated as part of a membership contract, it should be in a separate section in bold print with a separate signature line.
“All too often, the waiver wording is on the back of a membership agreement or buried in the fine print,” says Ken Reinig, senior vice president of Lakewood, CO-based Association Insurance Group, a Division of Thomco, which insures health clubs. “It doesn’t stand out. Most of the time, it doesn’t require a separate signature line, so it is very easy for the plaintiff to make the claim that they did not even see that part of the contract. And without having a signature very near the waiver, it is hard to make the case that they even saw it.”
Making the waiver a separate form also is important because most courts are hesitant to enforce waivers against injured parties and will only do so if the waivers are explicit and clear and unambiguous, says Don Ornelas Jr., attorney with Agajanian, McFall, Weiss, Tetreault & Crist LLP, Los Angeles.
“So if you have this stuff in the middle of a long contract and the court finds something wrong with that— for instance, where it looks like you are trying to hide something—then it decreases the likelihood that they are going to enforce it in court,” Ornelas says.
Typically, a well-written waiver form will cover personal training, even if the member did not initially sign up for personal training, but Herbert suggests that personal trainers who are contractors have their own separate waiver so they have adequate protection.
A well-written waiver form should include:
• A section identifying the person signing the waiver.
• A section noting that the person is 18 years old or older and has the legal capacity to sign the contract.
• Express assumption of risk language where the member acknowledges that there are certain risks involved in what they are doing at the club, with a list of some of the obvious risks.
• A voluntary consent and participation paragraph where the member says that they are voluntarily participating in the activities and they understand that they could get hurt.
• A clause that the risk is from activity and negligence.
• A clause that they have agreed to assume those risks themselves and to release the party who provides the services related to the risks.
• An emergency medical consent paragraph where the person waives their rights to sue if the club calls medical personnel to treat them if, for example, they have a heart attack or break their leg.
• An indemnity clause, where the member agrees that if any lawsuits arise out of their presence at the club, they agree to indemnify the club in connection with all of them.
• A choice of law provision that says that whatever state that club is in, that state will control whatever disputes arise out of the member’s activities.
• A severability clause, which would say that in the event that the court finds any clause or provision to be invalid, the balance of the paragraphs are enforceable.
• A space for the date of birth, the date of signing, member signature and signature of a witness
(Editor's Note: This article is not meant to be used to create your own waiver form. Consult an attorney or the resources noted to create a waiver form for your facility.)