October 14th, 2015
If you have ever attended a gym or other business that provides access to physical fitness activities, then you have very likely signed a release and waiver of liability, put in place to protect the business or provider from certain types of liability (if not all liability) and resulting damages.
Are such one-sided contracts enforced? And how are these pre-drafted, non-negotiable contracts of adhesion viewed when it comes to minors?
This article is a general review of the various issues raised by these contracts, and provides some final thoughts on how to draft effective releases and waivers in the health and fitness industry.
The view on and interpretation of releases and waivers in the health and fitness industry vary from state to state throughout the U.S. There are states that are considered lenient states on this topic (and allow waivers and releases), others that are moderate, and a final group that are considered strict. Whether or not a state favors or permits such waivers and releases, most states do not allow a parent to waive a child’s right to recovery in the case of injury, with a few exceptions. This is primarily because the opinion in most states is that such a waiver or release (of minor’s rights) violates public policy or is an issue of public concern.
Another similarity is that most states do not allow a party to protect themselves against liability for their own actions where they have exhibited gross negligence. Regular negligence may be waived, but gross negligence, or willful or wanton misconduct, cannot be waived.
In many states, these contracts are viewed as “contracts of adhesion” but because they apply to physical activity, are permitted where otherwise that activity would not be available to participants without such a waiver or release. The law on this topic is evolving and often the subject of much debate – on the one hand, there are states that favor the availability of sports programs for kids in their states and other physical fitness and activity options that promote the general well-being of the state’s citizens and so will permit waivers for most activities or even on behalf of minors. Other states will permit and enforce such waivers based primarily upon the belief that we should be allowed to contract freely and without interference when it comes to waiving our own rights, or the rights of our children. Florida, a lenient state, will even go beyond the 4 corners of the document in order to enforce its intent.
Other states do not see such activities as paramount or necessary, and so are willing to restrict the enforcement of waivers or releases in this context. Some states, like North Carolina, have restrictions against waivers for certain activities or by certain providers (like ski resorts), while willingly upholding waivers in other contexts (health clubs).
Some of the strictest states either will not permit such a waiver or release (Arizona, Louisiana, Montana, Virginia), or allow them subject to certain standards or conditions. These conditions might include requiring clear, conspicuous, well-written and unambiguous language, or even providing a list of the potential injuries that are being waived.
What does this mean for providers of health and fitness services?
I have worked with a variety of clients who provide such services in their home states as well as various other states throughout the U.S. Although there is no “one size fits all” waiver or release due to all the variability in state law on this issue, here are some general rules for businesses who stand to benefit from having an effective waiver and release in place:
1. Use waivers and releases. Even if you are providing services in a “strict” state, waivers and releases can and should be used. (You are not violating the law by using waivers and releases – the issue may just boil down to the enforceability of such a document). The use of these documents will very likely lessen the probability of being sued. Further, these documents, even if not fully enforced, may be introduced as evidence and provide valuable content when assessing damages or conducting discovery in a dispute.
2. Acknowledge that participation in the activity or services is strictly voluntary.
3. Include a recommendation that the party seek a physician’s approval for participation.
4. Recognize injury and even death as potential outcomes of participation; and state that “in consideration for participating, participant assumes all risks.” Although not all states require a list or description of potential injuries, it does not hurt, in any state, to do so. Provide a varied list of the potential injuries that could occur as a result of participation in the activity. It does not have to be comprehensive, but merely illustrative.
5. Use clear, concise language that is well-written, unambiguous, and plain on its face. Keep things short and sweet, Some states require that a person of ordinary knowledge understands that they are waiving certain rights, and the waiver and release must be totally without a hint of deception. If you are including a waiver of ordinary negligence in the document, make it conspicuous and define the term negligence. The goal is to make absolutely clear what is being waived.
6. Separate the assumption of risk from the language of the actual release and have each section initialed by the participant.
Finally, some clients may wonder whether a choice of law clause (for example, stating the California law will govern, if based in California, regardless of where one is providing the services) will allow one to “opt in” to a more lenient state’s interpretation of such a contract.
A court will look at the sophistication of the parties involved, and will likely also consider practical implications, such as nexus to the state. It seems unlikely that a scenario that occurs in Florida will be adjudicated in Washington or under Washington law without some nexus to the state, based strictly on a choice of law clause in a pre-drafted waiver and release that is non-negotiable for the participant. So the best option may be to use a choice of law clause where there is some obvious connection to two states and one clearly has more favorable law on this issue.
Otherwise, applying the six guidelines I’ve listed above will go a long way to offering as much protection as possible, regardless of state law.
Here are my last three posts in case you missed them!
If you’re interested in more posts about contracts then visit these other blog posts…..
DISCLAIMER: THE INFORMATION PROVIDED IN THIS POST MAY CONTAIN LEGAL INFORMATION, BUT DOES NOT CONSTITUTE LEGAL ADVICE. NO RELATIONSHIP, INCLUDING ATTORNEY-CLIENT RELATIONSHIP, HAS BEEN FORMED AS A RESULT OF THIS POST. YOU ARE ADVISED TO SEEK THE ADVICE OF AN ATTORNEY LICENSED IN YOUR STATE IF YOU HAVE ANY QUESTIONS.