Surviving the Signed Releases and Waivers from Liability
Do Signed Releases and Waivers from Liability Relieve Parties From Causing Injuries?
What happens to those who are injured after they have signed releases and waivers from liability? We have been contacted on a number of occasions when a client has been injured at a health club. They have either slipped and fallen around a pool, or they have had a piece of gym equipment fail. In both instances they were injured. We have also been contacted when a client has had a horseback riding accident, or they have been injured at a sporting event, in which they were a participant, such as a motocross event, car racing, soccer, baseball, scuba accidents, etc.
Signing Waiver or Release of Liability
In almost all of these cases, the client was asked to sign a Release or a Waiver. That is, before they can join the health club, or participate in horseback riding, or the motocross event, etc., the owner, or promoter, required that the client sign this “Waiver” or “Release” of liability. The release or waiver, in essence, states that the client is waiving all rights to sue if they are injured while they are on the property. If they don’t sign it, or refuse to sign it, then they are prohibited from joining the club, or participating in the event. In almost all of the fitness clubs this is a requirement.
In general, these “Waivers”, or “Releases”, have been held by the courts to be valid. They prevent the owner, or promoter, from being held liable, or responsible, to the person that was injured. Although they can still be sued, the court will eventually dismiss the lawsuit during some stage of the case, such as a motion to dismiss, or a motion for summary judgement. The case will not make it to the jury.
Exceptions to Waivers
There are, however, some exceptions to these “Waivers”. If there has been a code violation, then the waiver is not upheld, or is invalid. For example in a fall around a Fitness pool, if the pool was not built to code, or there are code violations such as maintenance, then the waiver will not bar a claim from being presented by the injured person, nor will the case be taken away from the jury, by way of a motion for summary judgment. In short, the Waiver will not apply.
For swimming pools there are a number of Codes that apply that will allow for an allegation of a violation. The violation of course must be the cause of the fall, and more then likely the violation was the reason for the fall.
For other accidents, in other venues, there are other ways to attack the signed Release, or the signed Waiver. For example, the language may not be as conspicuous as the courts require, or the font size may be too small, or the language is insufficient. These releases and waivers need to be reviewed by an attorney to see if they will pass muster with the courts. Each is different. The one the client may have signed may be too old, and does not comply with current law. Maybe the club forgot to get the client to sign a new release, which had been revised to comply with changes in the law.
Recent cases have also addressed claims where it is alleged that the club, motocross promoter, etc. was guilty of “gross negligence”. The courts have thus far held that if there are allegations of gross negligence, then the waiver will not bar the claim. A jury will have to decide if there was gross negligence, and the case will not be decided by way of a motion of summary judgment.
What is gross negligence?
This a question for the jury. However, it is necessary that in the complaint there are factual allegations that would support a conclusion of “gross negligence”. The courts have defined gross negligence as conduct that is “an extreme departure from the standard of conduct”. Although this sounds vague, each case will be different, and each will stand or fall on it’s own merits. The conduct must rise to the level of either a “want of even scant care”, or “an extreme departure”. This does not mean that a jury will agree, or conclude that the conduct was gross, but at least the case will get to the jury.
In conclusion, if you are injured in one of these facilities, or while participating in a sporting event, and you have signed releases and waivers of liability, you should contact an attorney, and provide him or her with a copy of the release, before you discuss the matter with the business, or the insurance company that insurers the business.