On March 2, the owners of Fitness Premiere in Little Rock, AR, realized the importance of having a well-written waiver form. On that day, a judge threw out a case in which a member who was injured while doing personal training at the facility sued Fitness Premiere and a personal trainer for her injuries. The member had signed a waiver form with the club when she joined, and prior to engaging in personal training, she signed a waiver form with the trainer, who was an independent contractor at the club.
“The waiver became the most important part of the litigation,” Ken Reinig, senior vice president of Association Insurance Group, a Division of Thomco, says about this case. (Although his Lakewood, CO-based company insures fitness facilities, it was not the insurance company for Fitness Premiere.) “The judge threw it out. Even though there was a serious injury involved, the waiver held up.”
Waivers are a contract by which people who execute the waiver give up their right to sue and make a claim on the basis of the activities released in the document, which is typically negligence.
Waivers have been subject to hundreds of cases against health and fitness facilities, says David Herbert, attorney with David L. Herbert and Associates, Canton, OH. Herbert also owns PRC Publishing, which provides information to professionals in legal, medical, sports, fitness and other provider fields.
Most of the lawsuits against health clubs result in a successful defense, Herbert says, partly due to better draftsmanship of releases and waivers today and partly because waivers are designed to limit the liability of those providing services deemed by the courts to be nonessential, which most courts consider health club services to be. Waivers are less likely to hold up in cases that involve essential services, such as health care.
Louisiana, Montana and Virginia, however, do not uphold waivers, mostly because of public policy that the courts in those states have determined should prohibit the use of those waivers, Herbert says. In those states, club operators should use an express assumption of risk form.
“That won’t release you from your own negligence, but it will release you from injuries that arise out of the activity,” Herbert says.
Although waivers (or express assumption of risk forms) are a good way to limit liability, club operators also should have a good risk management program and good insurance, says Doyice Cotten, an emeritus professor of sport management at Georgia Southern University, Statesboro, GA, where he taught graduate and undergraduate courses in sport law and risk management. Cotten writes waivers for health club operators and has written a book on the topic titled “Waivers and Releases of Liability.”
The cost of writing a waiver could be nothing if you do it on your own, or it could be $500 if someone such as Cotten writes it. The cost could rise to $1,000 or more if an attorney writes it.
“If you have a waiver that is going to be successful in barring a suit that could be for millions of dollars, that is an effective risk management tool, and that is a small cost,” Herbert says.
Some insurance companies require that fitness facilities have waiver forms before they will ensure them. However, Reinig’s company gives its clients a suggested waiver form and recommends they get waivers signed, but it does not require it. If a waiver is a requirement and someone ends up not signing a waiver for some reason, then a club is at more risk for a lawsuit because the club would not be in compliance with its insurance company, Reinig says.
“The big thing with the waiver is that it is definitely better to have one than not to have one,” Reinig says. “A waiver puts members on notice that they must let the club know if they have a physical problem or limitation rather than the staff making that determination.”
Reinig adds, “It puts the onus on the member to be responsible for their own health and ability to work out.”
But what are club operators to do about liability related to children in the club? Some states will recognize waivers for children under 18, but those waivers must be signed by parents, not the children, as minors can never waive their own rights, says Don Ornelas Jr., attorney with Agajanian, McFall, Weiss, Tetreault & Crist LLP, Los Angeles. At of the end of 2011, minor waivers were enforced in Alaska, Arizona, California, Colorado, Connecticut, Florida, Hawaii, Indiana, Michigan, North Dakota, Ohio and Wisconsin.
Ornelas, who drafts waivers and defends health clubs in lawsuits, says that in states where minor waivers are not allowed, club operators could simply rely upon the assumption of risk defense, which is applicable in almost every state. Or, they still could ask parents to sign a waiver in hopes that it would act as a deterrent to lawsuits if an incident occurs. However, even with a signed waiver, a child still can sue the club when he or she turns 18.
In some states, parents can agree to indemnify the club in the event that the child brings a claim against the entity as an adult, Herbert says. By signing an indemnification agreement, the parents agree to pay any judgment that is rendered against the club by the child.
“Some courts have looked at that and accepted that, and others have not,” Herbert says.
Once signed, a well-written waiver should be good forever, Reinig and Cotten say, but operators must ensure they review their waivers with their lawyers regularly to see if anything needs updating because of new case law or because of changes at the club, such as adding an aquatics area that might have additional risks.
Despite concerns about minor waivers as well as states that do not uphold waivers, many experts agree that fitness facility operators should spend the time and money putting together good waivers.
“Waivers are very effective in limiting a club’s liability,” Herbert says. “They are a very good risk management tool.”