8/14/2019 Liability Waiver update august 2008

1/1

50 F I T N E S S M A N A G E M E N T A U G U S T 2 0 0 8 w w w . f i t n e s s m a n a g e m e n t . c o m

FITNESS CENTERSare increas-ingly using prospectively executedreleases/waivers to defend againstclaims put forth by users of theirfacilities to bar successful claimsand suits. When they have beenused to bar so-called ordinary negligence allegations, and wherethey have been properly wordedand administered, these docu-ments have generally been givenlegal force in most states to barsuccessful claim and suit evenin the face of claims that users didnot read them, understand themor interpret them to bar their ownparticular claim or situation.

Skirting around a waiverIn those states where these

releases are recognized and notprohibited, such documents havebeen effective in reducing the

number of verdicts and judg-ments against facilities. However,to the extent that these contract-type documents have beenenforced by the courts, facility users and their lawyers havelooked for alternative claims toassert based on particular kindsof conduct. In this regard, claimsof gross negligence or evenintentional or willful conductmay be put forth against somefacilities in order to avoid the bar

provided by enforceable releasedocuments that withstand ordi-nary negligence claims. Theserelease documents on publicpolicy grounds may not beused to bar claims related tomore culpable conduct thanordinary negligence.

For example, in a recent courtruling from a Chicago, Ill., trialcourt, the plaintiff, as personalrepresentative of the estate of adeceased facility user, filed suitagainst the defendant facility

based on the claim that the facil-ity should have had an AED in itsfacility to respond to the heartattack the plaintiff experiencedwhile exercising at the fitnesscenter in November 2005. Six sep-arate claims were asserted againstthe facility, including negligence,gross negligence, fraud and breachof warranties.

In response to a defensemotion to dismiss the case, thecourt determined that a prospec-

tively executed release that thedecedent signed barred the negli-gence claim. However, the courtalso ruled that the release couldnot bar the claim of gross negli-gence. As a consequence, andbased on that one cause of actiondescribed in a series of allegationsasserting gross negligence, the caseagainst the facility will go forward.

While the mere allegations of a pleading are all that is consid-ered on a motion to dismiss asopposed to any determination

based on evidence that is actually presented later at trial thecourt ruled that the plaintiffsallegations more than metthe required burden to present aclaim of gross negligence, subjectto the presentation of later evi-dence. Consequently, even thoughthe court ruled against the plain-tiff on all claims except the one forgross negligence, the case will pro-ceed on that basis.

Protecting your facility Due to rulings like this one,and based on the fact thatprospectively executed releases of liability cannot bar claims of grossnegligence, facilities may well facemore similar claims in the future,some of which may go to trial.The use of waivers and releases,coupled with vigilant adherence tothe developing standards of care,may well be the best path for facil-ities to follow to avoid successfulclaims and suits. FM

Risk ManagementBY DAVID L. HERBERT, J.D.

Lawyers are finding ways

around waivers that have

worked to protect fitness

centers in the past.

Gross Negligence Claims and Releases

Management Matters

DAVID L. HERBERT , J.D., issenior partner at Herbert &Benson, Attorneys at Law,Canton, Ohio.