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Avoiding Releases and Waivers in Health Club, Gym and Spa Injury Cases

Health clubs, gyms, spas, and other “health-studio” defendants frequently assert defenses to liability based on signed exculpatory clauses (i.e. releases, liability waivers, contractual assumption of the risk).

But there are several principles that can be asserted to potentially defeat such defenses under California law:

 1. The injured guest or member did not sign or receive a signed copy of guest registration or membership contract.

A membership agreement (or arguably a guest registration) containing a release and/or liability waiver is invalid and unenforceable unless the facility provided the injured victim with a copy of the contract at the time it was signed per Civil Code section 1812.82 and Civil Code section 1812.91.

2. There was “GROSS negligence” that caused the injury.

An otherwise valid liability release or waiver does not release or waive liability for gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747.)

Ordinary negligence consists of a failure to exercise reasonable care to protect others from harm, while gross negligence consists of “a want of even scant care” or “an extreme departure from the ordinary standard of conduct.” City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747,754.

See Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729 ["gross negligence…connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results"].

CACI 425: "Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others."

 3.  There was statutory or regulatory violations that caused the injury (for example, Building Code violations).

 An otherwise valid liability release or waiver does not release or waive liability for statutory law, code, or regulatory violations. (Cal. Civil Code, 1668; Capri v. L.A. Fitness International, LLC (2000) 136 Cal.App.4th 1078 [Slip and fall due to Health and Safety Code violations]).

 4. The Contract or agreement violates public policy.

A contract that violates public policy is unenforceable. Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358,1372.)

Examples:

As stated in #1 above, membership contract or agreement that violates Civil Code 1812.82 is void and contrary to public policy per Civil Code 1812.91.

As stated in #2 above, a release of liability for future “gross negligence” generally is unenforceable as a matter of public policy. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750-751, 777).

5.  The liability release is vague, ambiguous, and/or unclear.

 “A written release may exculpate a tortfeasor from future negligence or misconduct.    To be effective, such a release “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.”  The release need not achieve perfection… []  The determination of whether a release contains ambiguities is a matter of contractual construction.    “An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.  An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.”   . . . If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.” *** “California courts require a high degree of clarity and specificity in a [r]elease in order to find that it relieves a party from liability for its own negligence.”   (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485,1488 [citations omitted].) 

“Waiver and release forms are to be strictly construed against the defendant.” (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733).

The terms of the release must not be “buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find.”  (See Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1232.[Liability release clause in health club membership contract was not conspicuous and was not enforceable against member; clause was in middle of document in the same smaller 8-point font used in most of the agreement, clause was not prefaced by heading, and title of agreement gave no indication that it contained liability release].

Example of a liability waiver clause contained in a health gym Membership agreement:

“ASSUMPTION OF RISK: Using A1-ME Health and Fitness Gym Studio facilities involves the risk of injury to you or your guest, whether you or someone else cause it. By signing this waiver, you accept this risk and agree that the A1-ME staff will not be liable for any injury or economic loss sustained by you, your spouse, guests, unborn child or relatives from the negligence of A1-ME staff, members or guests whether related to exercise or not. Further, you understand and acknowledge that A1-ME may not be held liable for defective products. Further, you represent that you are in good condition and no medical reason or impairment that might prevent you from your intended use of A1-ME facilities. You also agree that A1-ME  may contact you to discuss additional offers. Other rules may apply.”

If you've been the victim of a premises liability incident, contact attorney Matthew B. Tozer for a free consultation.

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change.  This advice is based on California law.  No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own counsel prior to relying on any information on this website.

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