As a club owner, it should not be a question of “if” you will be sued; you should be asking the question of “when.” Unfortunately, we live in a society that encourages litigation when a member is injured at your club, even if there is no negligence on the part of the club. The harsh realty is that no matter how safe your health club is, if you stay in business long enough, you will be involved in litigation with a member. The time to start your defense is not after the incident occurs; it is when the member joins your club.
Nearly all health club owners have some type of waiver and/or hold harmless wording in their membership agreements. Some of these waiver agreements are well written and a few of those waivers are even conspicuously displayed on the membership contract. However, the vast majority of all health club waivers will not hold up against the Trial Lawyers Association. Plaintiff attorneys know that our waivers are weak and that is why an injured member has no problem finding an attorney ready to take you on regardless of how they were injured. Even though most injuries are caused by “member malfunction,” the battle cry of “It’s not my fault,” will inevitably result in a trip through our legal system.
There are many problems with most of our existing waivers:
1. The waiver is too ambiguous.
2. The waiver is located on the back of a membership contract, and the signature line is on the front.
3. The waiver wording is so small (just like the rest of the contract), that it is very difficult to read.
4. The waiver is so poorly written, that most judges won’t allow it to be entered as part of your defense. In fact, a poorly written waiver can actually do more harm than good.
Starting today, we are going to fix these problems. To begin with, club owners have to embrace the idea that it is okay to require members and guests to sign a waiver. Some of my clients have asked me, “What if the member doesn’t want to sign a waiver?” The response is simple; blame it on the insurance guy. Tell the member that your insurance company requires everyone to sign the waiver. You can befriend your member and complain that the insurance companies are out of control and that you understand their hesitance to sign a document that removes their rights. However, if you don’t have them sign a waiver, they can’t join your club. Most members know that this is a reflection of our current litigious society, and most members are use to signing waivers of some sort if they have ever been on a white water rafting trip or horse back riding. So I think we are all clear about one thing, the member or guest signs a waiver…no exceptions.
A well-written waiver has four components:
1. It transfers risk. The waiver should point out that you (the club) recommend that before starting any exercise program, the member should consult with their physician. We are not in a position to determine whether or not an individual is physically capable of working out. That is why we “transfer” this responsibility to the member.
2. Assumption of risk. Even though working out as an inherent amount of “risk,” it is always important to remind the member in writing that they may hurt themselves working out at your club, or they may even slip and fall.
3. Hold/Harmless agreement. This is what most clubs have on their existing agreements. It is the wording that clearly states that the member will not sue the club for any reason.
4. Disclaimer. This is a complicated issue, so instead of explaining its importance, here’s a recommendation. “If any portion of this agreement is deemed by a court of competent jurisdiction to be against public policy or unenforceable, then only that wording is removed from the agreement, and the rest of the waiver will remain intact.” In other words, if your waiver is flawed, they can’t throw out the entire document (at least in theory).
Now that we have the components of a well written waiver, get with your local attorney, and have them draft your waiver agreement. Now comes the hard part. Instead of burying your waiver wording in your membership agreement or, worse yet, have it written on the back of a document that has no signature requirement, utilize a stand alone separate waiver agreement form with a signature and date requirement that you can now simply attach to the members file. The member signs once, and you never have to worry about it again. If you do not use a separate waiver, then you should put a separate signature line or “initials box” next to your waiver wording on your membership agreement. Don’t be afraid to ask the member to sign a separate waiver. You can always blame it on insurance purposes. Even in those jurisdictions like New Mexico and New York where waivers are rarely recognized, still have your members sign a notice of assumption of risk form.
It is always recommended that you consult your local attorney for advice.
Ken Reinig is the President of Association Insurance Group and the Owner of Women’s Workout Company in Lakewood, CO. He can be contacted at 877.521.9930, or by email at firstname.lastname@example.org.